International Criminal Law
Domestic Criminal Law

International Criminal Law

  1. Rape as a war crime
    Articles 8(2)(b)(xxii)-1 and 8(2)(e)(vi)-1 of the Rome Statute prohibit the war crime of rape in IACs and NIACs, respectively. The elements of the offences require that:

    1. Perpetrator invaded the body of person through penetration
      The first element of the war crime of rape involves invasion of the body of any person through penetration (including same-sex penetration and both male and/or female perpetrator and victims).3 Any form of penetration, however slight, is sufficient to complete the crime.4 There are two forms of penetration covered by this element:

      • penetration of any part of the body with a sexual organ5. This is a broad definition which covers vaginal, anal, or oral penetration.6
      • penetration of the anal or genital opening of the victim with any object or any other part of the body7. This covers penetration with something other than a sexual organ which could include penetration with either other body parts, for example a hand, or any other object.8
    2. The invasion was committed by force, threat of force or coercion, or against a person incapable of giving genuine consent
      The second element details the circumstances and conditions which give the invasion a criminal character9. For the invasion of the body to constitute rape, it has to be committed under one or more of the following circumstances: 

      • by force;
      • by threat or force or coercion, such as that caused by fear, violence, duress, detention psychological oppression or abuse of power, against such person or another person;
      • by taking advantage of a coercive environment; or 
      • against another person incapable of giving genuine consent if affected by natural, induced or age-related incapacity.10

      The coercive behaviour or environment may be directed towards the victim or a third person11. Use of physical force is not necessary for a finding of rape: the establishment of at least one of the coercive circumstances or conditions set out in elements is therefore sufficient alone for penetration to amount to rape12. Save for the very specific situation of a person whose ‘incapacity’ was ‘tak[en] advantage of’, the victim’s lack of consent is not an element, and does not need to be established under the Rome Statute13. Instead, the focus is on the presence of the coercive circumstances and conditions described above which, if established, will be sufficient for the penetration to amount to rape14. To the extent that consent may play a role as a defence15, consent cannot be inferred by reason of any words or conduct of a victim where one of these coercive conditions exists16. As such, it is not necessary to show that the victim explicitly said no or resisted. 17

    3. The crime was committed in the context of and associated with an armed conflict18, either of an international or non-international character
    4.  The perpetrator was aware of factual circumstances that established the existence of an armed conflict
    5. The perpetrator committed the rape with intent and knowledge
  2. Rape as a crime against humanity
    Article 7(1)(g)-1 of the Rome Statute prohibits the crime against humanity of rape19. The elements of the crime are that:

    1. The perpetrator invaded the body of person through penetration
      The first element of the crime against humanity of rape involves invasion of the body of any person through penetration (including same-sex penetration and both male and/or female perpetrator and victims)21. Any form of penetration, however slight, is sufficient to complete the crime22. There are two forms of penetration covered by this element:

      • penetration of any part of the body with a sexual organ23. This is a broad definition which covers vaginal, anal, or oral penetration24. In addition, the penetration may be of any part of the body of the victim or the perpetrator25. Consequently, a rape may occur where any part of the perpetrator’s body has been penetrated by a sexual organ. 
      • penetration of the anal or genital opening of the victim with any object or any other part of the body26. This covers penetration with something other than a sexual organ which could include penetration with either other body parts, for example a hand, or any other object.27
    2. The invasion was committed by force, threat of force or coercion, or against a person incapable of giving genuine consent
      The second element details the circumstances and conditions which give the invasion a criminal character28. For the invasion of the body to constitute rape, it has to be committed under one or more of the following circumstances: 

      • by force;
      • by threat or force or coercion, such as that caused by fear, violence, duress, detention psychological oppression or abuse of power, against such person or another person;
      • by taking advantage of a coercive environment; or
      • against another person incapable of giving genuine consent if affected by natural, induced or age-related incapacity.29

      The coercive behaviour or environment may be directed towards the victim or a third person30. Use of physical force is not necessary for a finding of rape31]. The victim’s lack of consent is not an element, and does not need to be established under either the Rome Statute32. Instead, the focus is on the presence of the coercive circumstances and conditions described above which, if established, will be sufficient for the penetration to amount to rape33. To the extent that consent may play a role as a defence34, consent cannot be inferred by reason of any words or conduct of a victim where one of these coercive conditions exists35. As such, it is not necessary to show that the victim explicitly said no or resisted.36

    3. The conduct was committed as part of a widespread or systematic attack directed against a civilian population
    4. The perpetrator knew or intended the conduct to be part of a widespread or systematic attack directed against a civilian population
    5. The perpetrator committed the rape with intent and knowledge
  3. Sexual violence as a crime against humanity
    Article 7(1)(g)-6 of the Rome Statute prohibits the crime against humanity of ‘any other form of sexual violence of comparable gravity]37. This is a residual crime designed to criminalise conduct not captured by the specific sexual violence crimes contained in the Rome Statute (namely the crimes against humanity of rape, sexual slavery, enforced prostitution, forced pregnancy, and enforced sterilization).
    The elements of the crime are that: 

    1. The perpetrator committed an act of a sexual nature
      To satisfy the first element, it must be established that the perpetrator committed an ‘act of a sexual nature’. Under international law, ‘acts of a sexual nature’ are defined broadly to include both physical and non-physical acts40. Acts such as forced nudity may amount to sexual violence, even in the absenceof physical contact41. The Hague Principles on Sexual Violence provide useful guidance on what, in context, makes violence ‘sexual’, especially from the viewpoint of survivors.42Acts of a sexual nature can be committed by and against any person regardless of age, sex or gender. This includes same-sex acts43. The perpetrator may commit the act of a sexual nature against one or more persons or cause the person to engage in an act of a sexual nature against themselves or a third party (including another person or an animal), or on a dead body.44In addition, the perpetrator must commit the act of a sexual nature by force, or by threat of force or coercion, against such person or persons or another person, or by taking advantage of a coercive environment or such person’s or persons’ incapacity to give genuine consent.45 These conditions and circumstances are the same as required for rape in the Rome Statute.
    2. The conduct was of a gravity comparable to other offences in article 7
      The conduct must be of a gravity comparable to other offences in article 7(1)(g) of the Statute. This includes rape, sexual slavery, enforced prostitution, forced pregnancy, and enforced sterilization, although should not be understood to exclude acts that do not involve penetration or physical contact46. In addition, the perpetrator must also have known this to be the case (see Article 30(3) – Knowledge, in mental elements, below).
    3. The perpetrator was aware of the factual circumstances that established the gravity of the conduct
    4. The conduct was committed as part of a widespread or systematic attack directed against a civilian population
    5. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population 
    6. The perpetrator committed the act of with intent and knowledge 
  4. Sexual violence as a war crime
    Articles 8(2)(b)(xxii)-6 and 8(2)(e)(vi)-6 of the Rome Statute prohibit the war crime of any other form of sexual violence also constituting a grave breach of the Geneva Conventions and serious violation of article 3 common to the four Geneva Conventions in IACs and NIACs, respectively. The elements of the offence are that: 

    1. The perpetrator committed an act of a sexual nature
      Like article 7(1)(g) of the Rome Statute, sexual violence as a war crime is a residual offence, designed to capture sexual crimes that do not fall within other specified sexual offences. In this sense, the requirement that the perpetrator committed an act of a sexual nature is directly analogous to the elements of sexual violence as a crime against humanity under article 7(1)(g) of the Rome Statute.
    2. The conduct was of a certain gravity
      Article 8(2)(b)(xxii) requires the precise act of sexual violence to be of a comparable gravity to that of a grave breach of the Geneva Conventions in the case of an IAC or a serious violation of article 3 common to the four Geneva Conventions in the case of a NIAC.  Accordingly, in order to satisfy the elements of Articles 8(2)(b)(xxii)-6 and 8(2)(e)(vi)-6, it must be shown that the sexual conduct in question was, at a minimum, comparable in gravity to those crimes identified under Article 8(2)(a) of the Rome Statute, which include: 

      • wilful killing;
      • torture or other cruel, inhuman or degrading treatment;
      • wilfully causing great suffering, or serious injury to bod or health; 
      • extensive destruction of appropriation of property, not justified by military necessity and carried out unlawfully or wantonly; 
      • compelling a prisoner of war or other protected person to serve in the forces of a hostile power 
      • wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial;
      • unlawful deportation or transfer or unlawful confinement; and 
      • taking of hostages.
    3. The perpetrator must have known of the factual circumstances establishing the gravity of that conduct
    4. The conduct was committed in the context of an was associated with an armed conflict
    5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict
    6. The perpetrator committed the act of a sexual nature with intent and knowledge

Domestic Criminal Law

Although the scope and precise definitions are controversial, rape and sexual violence are extremely broadly criminalised around the world. Soon, information on 10 jurisdictions will be provided and accessible here.

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1 The concept of “invasion” is intended to be broad enough to be gender-neutral.
2 It is understood that a person may be incapable of giving genuine consent if affected by natural, induced or age-related incapacity.
7 See ICC Elements of Crimes, art 7(1)(g)-1.
11 The Hague Principles on Sexual Violence, p. 47; ICC Elements of Crimes, art 7(1)(g)-1, 8(2)(b)(xxii)-1, and 8(2)(e)(vi)-1, element two. See also, Ntaganda Trial Judgment, para 944; Kunarac et al. Appeal Judgment, para 130; Kunarac et al.  Trial Judgment, para 711.
12 ICC Elements of Crimes, art 7(1)(g)-1; Ntaganda Trial Judgment, para 934; Bemba Trial Judgment, para 103; Akayesu Trial Judgment, para 688; Delalić et al. Trial Judgment, para 937; Kunarac et al. Appeal Judgment, para 129; Taylor Trial Judgment, para 416;  Prlić et al. Judgment, para. 70; Furundžija Trial Judgment, para 82; Prosecutor v. Muhimana Trial Judgment, para 297. See also, Istanbul Convention, art 36; Istanbul Convention Explanatory Report, art 36, para 192;  M.C. v. Bulgaria, paras 161, 163; Committee on the Elimination of Discrimination Against Women, ‘General Recommendation No 35 on gender-based violence against women, updating general recommendation No. 19’ (14 July 2017) CEDAW/C/GC/35, para 33.
13 ICC Elements of Crimes, art 7(1)(g)-1.
17 ICC Rules of Procedure and Evidence, rule 70; Istanbul Convention, article 36; Istanbul Convention para. 191; M.C. v Bulgaria, Trial Judgment, para. 164; E.B. v. Romania, Trial Judgment, para. 56; Karen Tayag Vertido v. the Philippines, Trial Judgment, paras 8.7, 8.9.b(b)(ii); R. P. B. v. the Philippines, Trial Judgment, para. 8.1. See also, Prosecutor v. Gacumbitsi, Trial Judgment, para. 155; Kunarac et al. Trial Judgment, paras 644-646.
18 ICC Elements of Crimes, article 8 (2)(a)-I. The test was referenced by the ICTR in Prosecutor v. Kayishema et al., ICTR-95-1-T, Judgment, 21 May 1999 (‘Kayishema et al. Trial Judgment’) para. 187.
19 The crime against humanity of rape is also prohibited under the ICTY Statute, article 5 (g); ICTR Statute, article 3(g); SCSL Statute, article 2(g); and the Law on the Establishment of ECCC, article 5. Rape as a war crime is prohibited by the Rome Statute, articles 8(2)(b)(xxii) and 8(2)(c)(vi).
20 ICC Elements of Crimes, article 7(1)(g)-1.
21 Ntaganda Trial Judgment, para 993; Bemba Trial Judgment, para 100; Ntaganda Decision on the Confirmation of Charges, para 52; Prosecutor v. Sesay et al., SCSL-04-15-T, Judgment, 2 March 2009 (‘Sesay et al. Trial Judgement’) para 146.
23 ICC Elements of Crimes, art 7(1)(g)-1; Bemba Trial Judgment, para 101; Prosecutor v. Furundžija, IT-95-17/1-T, Judgment, 10 December 1998 (‘Furundžija Trial Judgment’)paras 183-185; Delalić et al. Trial Judgment, para 1066. 
25 ICC Elements of Crimes, art 7(1)(g)-1.
26 See ICC Elements of Crimes, art 7(1)(g)-1.
30 Women’s Initiative for Gender Justice, ‘The Hague Principles on Sexual Violence’ (2019), < https://4genderjustice.org/wp-content/uploads/2020/02/MASTER-DOC-The-Hague-Principles-on-Sexual-Violence.pdf >  47; ICC Elements of Crimes, art 7(1)(g)-1, 8(2)(b)(xxii)-1, and 8(2)(e)(vi)-1, element two. See also, Ntaganda Trial Judgment, para 944; Kunarac et al. Appeal Judgment, para 130; Prosecution v. Kunarac et al., IT-96-23-T, IT-96-23/1-T, Trial Judgment (Kunarac et al. Trial Judgment), para 711.

31 ICC Elements of Crimes, art7(1)(g)-1; Ntaganda Trial Judgment, para 934; Bemba Trial Judgment, para 103; Akayesu Trial Judgment, para 688; Delalić et al. Trial Judgment, para 937; Kunarac et al. Appeal Judgment, para 129; Taylor Trial Judgment, para 416; Prosecutor v. Prlić et al., IT-04-74-T, Judgment (Prlić et al. Trial Judgment), 29 May 2013, para 70; Furundžija Trial Judgment, para 82; Prosecutor v. Muhimana, ICTR-95-1B-T, Judgment and Sentence, 28 April 2005 (‘Muhimana Trial Judgment’) para 297. See also, Council of Europe Convention on preventing and combating violence against women and domestic violence (11 May 2011) CETS No.210 (Istanbul Convention), art 36; Council of Europe Explanatory Report to the Council of Europe Convention on preventing and combating violence against women and domestic violence  (11 May 2011) CETS No. 210 (Istanbul Convention Explanatory Report), art 36, para 192; M.C. v. Bulgaria App no 39272/98 (ECtHR, 4 March 2004) paras 161, 163; UNCHR Committee on the Elimination of Discrimination Against Women, ‘General Recommendation No 35 on gender-based violence against women, updating general recommendation No. 19’ (14 July 2017) CEDAW/C/GC/35, para 33.

32 ICC Elements of Crimes, art 7(1)(g)-1.
34 Women’s Initiative for Gender Justice, ‘The Hague Principles on Sexual Violence’ (2019), < https://4genderjustice.org/wp-content/uploads/2020/02/MASTER-DOC-The-Hague-Principles-on-Sexual-Violence.pdf > 44.
35 International Criminal Court, Rules of Procedure and Evidence, reproduced from the Official Records of the Assembly of States Parties to the Rome Statute of the International Criminal Court, First session, New York (3-10 September 2002) ICC-ASP/1/3 and Corr.1, part II.A (‘ICC Rules of Procedure and Evidence’), rule 70. See also, Istanbul Convention Explanatory Report, para. 191; M.C. v Bulgaria, para. 165; E.B. v. Romania, Application No. 49089/10 (ECtHR, 19 March 2019), para. 56 (‘E.B. v. Romania’); Karen Tayag Vertido v. the Philippines, Communication No. 18/2008 (22 September 2009); Convention on the Elimination of All Forms of Discrimination against Women CEDAW/C/46/D/18/2008, paras 8.7, 8.9.b.(b)(ii) (CEDAW); Karen Tayag Vertido v. the Philippines; R. P. B. v. the Philippines, (Judgment) Communication No. 34/2011 (12 March 2014); CEDAW/C/57/D/34/2011; R.P.B. v. the Philippines’, Trial Judgment, paras 8,10.
36 ICC Rules of Procedure and Evidence, rule 70; Istanbul Convention, article 36; Istanbul Convention, para. 191; M.C. v Bulgaria, Trial Judgment, para. 164; E.B. v. Romania, Trial Judgment para. 56; Karen Tayag Vertido v. the Philippines, Trial Judgment, paras 8.7, 8.9.b(b)(ii); R. P. B. v. the Philippines, Trial Judgment, para. 8.1. See also, Prosecutor v. Gacumbitsi, ICTR-2001-64-A, Judgment, 17 June 2004 (Prosecutor v. Gacumbitsi Trial Judgment) para. 155; Kunarac et al. Trial Judgment, paras 644-646.
37 Rome Statute, art 7(1)(g)-6.

38 ICC Elements of Crimes, articles7(1)(g)-6, 8(2)(b)(xxii)-6, art 8(2)(e)(vi)-6, element one. 

39 ICC Elements of Crimes, art 7(1)(g)-6.
40 Akayesu Trial Judgment, para. 688; Furundžija Trial Judgment, para. 186; Brima et al. Trial Judgment, para. 720; Milutinovic et al. Trial Judgment, paras 194-195, 199; Rukundo Trial Judgment, para. 380. See also, Policy Paper on Sexual and Gender-Based Crimes 2014, p.3; UNCHR Contemporary forms of slavery, systematic rape, sexual slavery and slavery like practices during armed conflict: Final Report, paras 21-22.
41 Akayesu Trial Judgment, para. 688; Kunarac et al. Trial Judgment, paras 769, 772; Kvočka et al. Trial Judgment,  para. 170; Brdanin Trial Judgment, para. 1013; Prosecutor v. Brima et al., SCSL-2004-16-A, Judgment, 22 February 2008 (‘Brima et al. Appeal Judgment’), para. 184. See also, UNCHR Contemporary forms of slavery, systematic rape, sexual slavery and slavery like practices during armed conflict: Final Report, para. 21: Sexual violence includes acts such as ‘forcing a person to strip naked in public’; ICC Office of the Prosecutor, Report on Preliminary Examination Activities 2016 (14 November 2016), para. 94: ‘In addition, detainees were forcibly maintained in a state of forced nudity, compelled to perform physical exercises naked […]’; Policy Paper on Sexual and Gender-Based Crimes 2014, (ICC OTP Policy Paper on Sexual and Gender Biased Crimes) p. 3: ‘An act of a sexual nature is not limited to physical violence, and may not involve any physical contact – for example, forced nudity’. Before, the ICC, the Bemba Arrest Warrant decision did not dispute the fact that forced nudity constitutes sexual violence; rather, the decision indicated that the alleged acts of forced nudity were not of sufficient gravity to prosecute: Prosecutor v. Bemba, ICC-01/05-01/08, Warrant of Arrest for Jean-Pierre Bemba Gombo, 23 May 2008; Bemba Arrest Warrant Decision’, paras. 39-40; The Hague Principles on Sexual Violence, pp. 13-14.
44 The Hague Principles on Sexual Violence (2019), p. 8. ICC Elements of Crimes, articles 7(1)(g)-6, 8(2)(b)(xxii)-6, and 8(2)(e)(vi)-6, element one. See e.g.,, Delalić et al. Trial Judgment, para. 1065; Prosecutor v. Todorović, IT-95-9/1-S, Sentencing Judgment, (31 July 2001) paras 38-40.
45 ICC Elements of Crimes, articles 7(1)(g), 6.
46 Hall et al. (2016), p. 216. To date, the only jurisprudence related to the ‘comparable gravity’ criterion emanates from the Bemba Warrant of Arrest Decision, where the Pre-Trial Chamber found that forcible undressing was not of comparable gravity to the other crimes in Article 7(1)(g): Bemba, Arrest Warrant Decision, para. 40. However, there is a line of jurisprudence from the ad hoc tribunals that confirms that forced nudity is to be considered as an act of sexual violence: Akayesu Trial Judgment, para. 688; Kunarac et al. Trial Judgment, paras 769, 772; Kvočka et al. Trial Judgment, para. 170; Brdanin Trial Judgment, para. 1013; Brima et al. Appeal Judgment, para. 184.  See also, UNCHR Contemporary forms of slavery, systematic rape, sexual slavery and slavery like practices during armed conflict: Final Report, para. 21; Report on Preliminary Examination Activities 2016, para. 94: ICC OTP Policy Paper on Sexual and Gender-Based Crimes, p. 3.