Assessment Coversheet Faculty of….
and Feedback Form
School of….
Complete the details marked in the coloured text and leave everything else blank. Where appropriate,
copy and paste your submission after the first pages as indicated. You are reminded of the University
Student Name
Reasonable Adjustments
Check this box [x] if the Faculty
has notified you that you are
Course and Year
LL.M IHRL/IL 2020/21
eligible for a Reasonable
Module Code
LAW 7123
Adjustment (including additional
Module Title
International Criminal Law
time) in relation to the marking
Module Tutor
of this assessment. Please note
that action may be taken under
the
University’s
Student
Disciplinary Procedure against
Personal Tutor
any student making a false claim
for Reasonable Adjustments.
regulations on cheating. Except where the assessment is group-based, the final piece of work which is
submitted must be your own work. Close similarity between submissions is likely to lead to an
investigation for cheating. You must submit a file in an MSWord or equivalent format as tutors will use
MSWord to provide feedback including, where appropriate, annotations in the text.
Student Number
First
First
Marker
Marker
Date:
Name:
Signature:
Feedback: General comments on the quality of the work, its successes and where it could be improved
Provisional
Uncapped
Mark
Marks
will
be
capped if this was a
late submission or
resit
assessment
and
may
be
moderated up or
down
by
the
examination board.
%
Feed Forward: How to apply the feedback to future submissions
1
Quality and use of Standard English and Academic Conventions
Spelling Errors
Style is Colloquial
Standard is a Cause for Concern
Grammatical Errors
Inappropriate Structure
Punctuation Errors
Inadequate Referencing
If the box above has been ticked you should
arrange a consultation with a member of
staff from the Centre for Academic Success
via Success@bcu.ac.uk
Moderation Comments (Please note that moderation is carried out through ‘sampling’. If this section is
left blank, your work is not part of the sample.)
Moderation is done via sampling. Your work was not part of the sample.
Moderator
Name:
Moderator
Signature:
Date:
Marking criteria – please study these carefully
0 – 39%
40 – 49%
50 – 59%
60 – 69%
70 – 79%
Fail
Fail
Pass
Strong pass
Very strong pass Exceptionally
strong pass
(distinction)
(merit)
80 – 100%
(distinction)
1. Identify and distinguish at the level of detail the key concepts, principles, and institutions of
international criminal law, including their origins, limits and potential.
Very
little Evidence
of
evidence of the some ability to
ability
to identify the key
identify the key concepts,
concepts,
principles, and
principles, and institutions of
institutions of international
international
criminal law
criminal law
Evidence
of Evidence
of Evidence of very Evidence
of
satisfactory
reasonably good good ability to exceptionally
ability
to ability
to identify the key good ability to
identify the key identify the key concepts,
identify the key
concepts,
concepts,
principles, and concepts,
principles, and principles, and institutions of principles, and
institutions of institutions of international
institutions of
international
international
criminal law
international
criminal law
criminal law
criminal law
2
Little to no Limited ability to Satisfactory
Good ability to Very good ability Exceptionally
ability
to distinguish
at ability
to distinguish
at to distinguish at good ability to
distinguish
at the level of distinguish
at the level of the level of distinguish at
the level of detail between the level of detail between detail between the level of
detail between different issues detail between different issues different issues detail between
different issues pertaining
to different issues pertaining
to pertaining
to different issues
pertaining
to international
pertaining
to international
international
pertaining to
international
criminal law
international
criminal law
criminal law
international
criminal law
criminal law
criminal law
Mistakes and/or
Very
few Absence of any
Many
omissions are Few substantial substantial
substantial
Absence of any
substantial
present, some of mistakes
or mistakes
or mistakes
or mistakes
or
mistakes and/or which
are omissions
omissions
omissions
omissions
omissions are substantial
present
2. Critically analyse issues pertaining to international criminal law, and to develop and sustain a
convincing argument.
Very
little Unsatisfactory Satisfactory
Good attention Very
good Exceptional
attention to the attention to the attention to the to the question attention to the attention to the
question asked question asked question asked asked
question asked question asked
Little to no Evidence
of Evidence
of Evidence
of Evidence of very Evidence
of
evidence of skills limited skills of reasonable skills good skills of good skills of exceptionally
of
critical critical analysis, of
critical critical analysis, critical analysis, good skills of
analysis,
synthesis and analysis,
synthesis and synthesis and critical analysis,
synthesis and evaluation
synthesis and evaluation
evaluation
synthesis and
evaluation
evaluation
evaluation
Little to no
Evidence
of Evidence
of
No evidence of evidence
of Evidence
of reasonably good good ability to Evidence
of
ability
to ability
to limited ability to ability
to develop
a very
good
develop
a develop
a develop
a develop
a convincing
ability
to
convincing
convincing
convincing
convincing
argument
develop
a
argument
argument
argument
argument
including
a convincing
including
a including
a including
a including
a critique of a rival argument
critique of a rival critique of a rival critique of a rival critique of a rival position
including
a
position
position
position
position
critique of a
Good attempt at rival position
No attempt at Little to no Limited attempt Reasonable
originality
in
originality
in attempt
at at originality in attempt
at approaching the Very
good
approaching the originality
in approaching the originality
in topic,
and attempt
at
topic, and no approaching the topic,
and approaching the personal
originality
in
personal
topic, and no personal
topic,
and contribution to approaching
3
contribution to personal
contribution to personal
debate on the the topic, and
debate on the contribution to debate on the contribution to topic
personal
topic
debate on the topic
debate on the
contribution to
topic
topic
debate on the
topic
3. Conduct an independent and advanced legal and academic research in international criminal law,
drawing from a wide array of sources including case law, other primary materials, and scholarly critique.
No evidence of No evidence of
reading
and reading
and
research beyond research beyond
basic texts
basic texts
Reading
and Evidence
of Evidence
of Evidence
of
research
is reasonably wide wide
reading particularly
largely confined reading
and and research
wide reading
to basic texts
research
and research
Very
good
Majority of the Unsatisfactory Satisfactory
Good
competence in Exceptionally
key sources are competence in competence in competence in the
selection good
omitted
the
selection the
selection the
selection and use
of competence in
and use
of and use
of and use
of sources
the selection
Little to no sources
sources
sources
and use of
evidence
of
Evidence of very sources
of Evidence
of Evidence
of good ability to
ability
to Evidence
of
evaluate
and limited ability to reasonable
good ability to evaluate
and Evidence
engage
with evaluate
and ability
to evaluate
and engage
with exceptional
current
legal engage
with evaluate
and engage
with current
legal ability
to
research
and current
legal engage
with current
legal research
and evaluate and
theoretical
research
and current
legal research
and theoretical
engage
with
arguments on theoretical
research
and theoretical
arguments on current
legal
the subject
arguments on theoretical
arguments on the subject
research and
the subject
arguments on the subject
theoretical
the subject
arguments on
the subject
4. Communicate complex ideas clearly and effectively in writing, maintaining coherent structure and a
balanced organisation of information and argument, and paying close attention to professional legal and
academic standards of style and presentation.
Discussion
is Clarity
of
very
unclear, discussion
is
with repetitions inconsistent,
and sentences confusion
or
that make little repetitions may
sense
be present
Very confusing Largely
structure
and confusing
structure
Satisfactory
clarity
discussion
Good clarity of Very good clarity Excellent clarity
of discussion
of discussion
of discussion
Reasonably
Very clear and
Acceptable
clear
and appropriate
structure
and appropriate
structure
and
organisation of structure
and logical
information
organisation of organisation of
information
information
and
4
Particularly
clear
and
appropriate
structure and
logical
organisation of
information
organisation of organisation of
Satisfactory
information
information
grammatical
Grammatical
Unsatisfactory accuracy
Good
grammatical
accuracy
accuracy
is grammatical
particularly poor accuracy
Very
good Excellent
grammatical
grammatical
accuracy
accuracy
Reasonable
Good attention Very
good Acute attention
attention
to to
providing attention
to to
providing
providing clear clear
and providing clear clear
and
Little to no Limited
and consistent consistent
attention
to attention
to and consistent consistent
providing clear providing clear referencing and referencing and referencing and referencing and
appropriate
appropriate
appropriate
and consistent and consistent appropriate
bibliography
bibliography
bibliography
referencing and referencing and bibliography
appropriate
bibliography
appropriate
bibliography
5
To: Office of the Prosecutor of the International Criminal Court
From: Kanishkha Aurora Lacerna Salpitikorala
Date: October 02 , 2021
Re: Examining Crimes of Sexual Violence within International Criminal Law: Should the
international community look into classifying Crime of sexual violence and rape as a core crime
under international criminal law?
This memorandum looks to examine Crime of sexual violence and rape in the international
criminal sphere and seeks to assess whether there is a need to look at the Activation of such
crimes to its own Core crime under International Criminal Law.
The prevalence of Crime of sexual violence and rape in conflict is not new, and predates our
modern history, the progress made while encouraging , still proves to be problematic when
such crimes are brought about at an international level often being assigned much higher
burdens of proof , this paper poses that activating Crime of sexual violence and rape to being
its own separate core crime, removes it from the need to satisfy the burdens linked to the
other four core crimes , allowing for a redress system that can attend to individual cases that
don’t necessarily fall under the Crime of Genocide, War Crimes, Crimes Against humanity or
Crimes of Aggression.
It is recognised that while gender sensitivity in this sphere is relatively new, the current move
towards inclusivity and recognising the perpetrations of Crime of sexual violence and rape
towards men and members identifying on the non-conforming/LGBTQIA+ gender spectrum is
one that indicates that the recognition of these crimes and the subsequent attitude towards
their investigation and prosecution is heading in the right direction, the addition of legal
reforms to prioritise the prosecution of Crime of sexual violence and rape and a possible
Activation of such to being a Core Crime will certainly bring the International Criminal Justice
system to a new and revolutionary standing in the pursuit of justice .
Introduction
The development of what we now regard as International Criminal Law was a long,
strenuously fought journey by many states in the efforts to maintain justice and peace
internationally. It’s evolution from the laws of war to the Nuremburg and Tokyo Trials, to the
6
ad hoc tribunals and the accession of the Rome statue essentially culminated to the
development of an international body that recognizes responsibilities and imposes individual
criminal responsibility for the violation of international crimes via international mechanisms1.
Thus, since the adoption of the Rome statute in 1998, these legal mechanisms, bring to the
forefront of the international community, the importance of just conduct and the sanctity of
preservation of human rights and dignity even during times of conflict. Of particular focus in
this memorandum will be the Crimes of Sexual Violence and Rape.
History
War and conflict are not new to the world, devastation, casualties and most notably the
violation of Human Rights sparked mass outrage in the international community, resulting in
a need for rules, laws, and protection mechanisms. It is no secret that previously the Crimes
of Sexual Violence were often largely ignored however as of recent they have attracted
international attention and thus creating a need for legislations and mechanisms to help
prosecute the crimes.
Looking at the protection mechanisms/ charters historically speaking, we see that despite the
protections of the UN charter of 19452 the world has seen its worst burgeonings in armed
conflict, leading to calamitous devastation to cities, infrastructure, and militant and civilian
wellbeing. It is pertinent to note that while most casualties from armed conflict comprises of
civilian it is the female civilians who from time immemorial have made up a large percentage
of those most severely affected conflict- this however does not negate the need for and
current strides made in inclusivity in this arena, such as the endeavours made for
memorandum of the charter to remain gender neutral to acknowledge the need for
inclusivity.
When regarding the history of Crime of sexual violence and rape in ICL, it is the 1949 Geneva
Convention Relative to the Treatment of Prisoners of War which provided what was then
regarded as the primary mechanism for instituting protections against rape via Article 27,
which provided:
“Protected persons are entitled, … to respect for their persons, their honour, their family rights,
their religious convictions and practices, and their manners and customs. They shall at all
times be humanely treated, and shall be protected especially against all acts of violence or
threats thereof and against insults and public curiosity.
1
“Developments in the Law: International Criminal Law.” Harvard Law Review 114, no. 7 (2001): 1943–2073.
https://doi.org/10.2307/1342499 [Last accessed: 29 September 2021]
2
United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, available at:
https://www.refworld.org/docid/3ae6b3930.html [accessed 6 October 2021]
7
Women shall be especially protected against any attack on their honour, in particular against
rape, enforced prostitution, or any form of indecent assault. Without prejudice to the
provisions relating to their state of health, age and sex, all protected persons shall be treated
with the same consideration by the Party to the conflict in whose power they are, without any
adverse distinction based, in particular, on race, religion or political opinion. However, the
Parties to the conflict may take such measures of control and security in regard to protected
persons as may be necessary as a result of the war” 3.
In recognizing this we must give due regard to the International Criminal Tribunal for
Yugoslavia (ICTY) and The International Criminal Tribunal for Rwanda (ICTR) as the essential
building blocks for the codification of Crime of sexual violence and rape and being the
catalysts in the shattering the silence and indifference towards rape as a crime in International
Law 4.
Article 5 (g) of the ICTY and Article 3 (g) of the ICTR states.
“The International Tribunal shall have the power to prosecute persons responsible for the
following crimes when committed in armed conflict, whether international or internal in
character, and directed against any civilian population: (g) rape”
The jurisprudence from these tribunals are the first instances where we see rape defined in
international criminal law, as there had been no previous codifications of an internationally
agreed definition.5 It was at these tribunals where we saw the biggest strides in the
development of prosecuting Crime of sexual violence and rape by bringing it under Genocide,
War Crimes, Crimes Against Humanity and Crimes of Aggression.
Following on from this the Rome statute, adopted on the 17th of July 1998 brought the
International Criminal Court into force on the 1st of July 2002. this court acts as the worlds
permanent International Criminal court and acts as the judicial organ of the International
Criminal Arena6, it is mandated to investigate and prosecute offenders who are accused of
3
Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, art. 27, 6
U.S.T. 3316, 75 U.N.T.S. 287 (Oct. 20, 1950)
4
Statute of the International Criminal Tribunal for the Former Yugoslavia, U.N. Doc. S/25704, art. 5(g) (1993);
Statute of the International Criminal Tribunal for Rwanda, U.N. Doc. S/RES/955, art. 3(g) (1994)
5
Mark Ellis, Breaking the Silence: Rape as an International Crime, 38 Case W. Res. J. Int'l L. 225 (2007)
Available at: https://scholarlycommons.law.case.edu/jil/vol38/iss2/3 Last accessed : 29 September 2021]
6
International Criminal Court (ICC), Fact Sheet, Understanding the International Criminal Court, available at:
https://www.icc-cpi.int/iccdocs/pids/publications/uicceng.pdf [Last accessed: 29 September 2021]
8
committing the most egregious crimes of concern within the international community 7.
Comprised of four main parts; the presidency, the chambers (pre-trial, trial and appeal), the
office of the prosecutor and the registry each with its own specific role, the entire court in its
function is mandated to investigate, prosecute, and sentence those who commit any of the
Core Crimes which are; War Crimes, Crimes Against Humanity, genocide, and Crimes of
Aggression. 8
Previously governments and human rights groups were previously largely indifferent to
Crimes of Sexual Violence, and it was due to the Women’s Caucus for Gender Justice in the
ICC that we now see a gender perspective within the Rome statute, which is the current
standing mechanism used to prosecute Crimes of Sexual Violence and Rape. 9
Sexual Violence and Rape within International Criminal Law
Sexual Violence, despite the awareness, and legal protections available today remains one of
the most pervasive, prevalent perpetrations of criminal action against civilians in times of
conflict.
Defining Crime of sexual violence and rape in respect of the perpetrations of the crimes has
been a remarkably recent development. The charters of the Nuremburg and Tokyo did not
define rape. 10
Definitions came later the statutes of the ICTY, ICTR, Special Panels for Serious Crime11 , the
Special Court for Sierra Leone12 , the Extra Ordinary Court Chambers for Cambodia, and the
International Criminal Court all list various sex crimes (expressly naming those of sexual
slavery, force impregnation, sexual trafficking) and rape. Some of the crimes included do not
7
Pam Spees, 'Women’S Advocacy In The Creation Of The International Criminal Court: Changing The
Landscapes Of Justice And Power' (2003) 28 Signs: Journal of Women in Culture and Society
https://www.jstor.org/stable/10.1086/375498 [accessed 30 September 2021].
8
Rome Statute of the International Criminal Court, (last amended 2010), 17 July 1998
9
Barbara Bedont and Katherine Hall-Martinez, 'Ending Impunity For Gender Crimes Under The International
Criminal Court' (1999) Vol.6, No.1, The Brown Journal of World Affairs, p65-85
10
Gerhard Werle, Florian Jessberge, Principles of International Criminal
11
UNTAET/Reg/2000/15, On the Establishment of Panels with the Exclusive Jurisdiction Over Serious Criminal
Offences, 6 June 2000 (hereafter SPSC).
12
Statute of the Special Court for Sierra Leone, 16 January 2002, 14 August 2000, UN Doc. S/2000/915
9
fit the definition of rape but however the commissions of which would certainly satisfy the
actus reus of sexual violence. As per Article 7(2) (c) of the Rome Statute which stipulates that
enslavement involves.
“Right to ownership over a person and includes the exercise of such power in the
course of trafficking in persons, in particular women and children.”
Below I will detail the current instruments that establish the criminalization of sexual crimes.
Under the ICTY statute rape is listed under Article 5 (g) as crime against humanity.
Under the ICTR statute rape is listed under Article 3 (g) as a crime against humanity, Article 4
lists rape, enforced prostitution and indecent assault of any kind as a serious violation of
Article 3 of the Geneva Conventions of 12 August 1949 for the Protection of War Victims, and
of Additional Protocol II 197713;
As per Section 6(1)(b)(xxii) and 6 (1)(e)(vi) of the SPSC rape, sexual slavery, enforced
prostitution, forced pregnancy ... enforced sterilization or any other form of sexual violence
is found to violate the Geneva Conventions, and Article 3 common to the four Geneva
Conventions.
The Statute of the SCSL – Article 2 (g) of the SCSL stipulates that rape, sexual slavery, enforced
prostitution, forced pregnancy and any other form of sexual violence is crime against
humanity, and Article 3(e) lists outrages upon personal dignity, in particular humiliating and
degrading treatment, rape, enforced prostitution and any form of indecent assault as a
violation of article 3 of the Geneva Conventions 1949 for the Protection of War Victims, and
of Additional Protocol II
Article 9 of the ECCC lists crimes against humanity, as defined in the 1998 Rome Statute.
Article 7 (1)(g) of the Rome statute lists rape, sexual slavery, enforced prostitution, forced
pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity
as a crime against humanity.
Article 8(2)(b)(xxii) of the statute stipulates that rape, sexual slavery, enforced prostitution,
forced pregnancy... enforced sterilization or any other form of sexual violence are serious
violations of the laws and customs applicable in international armed conflict; and Article
8(e)(vi) states that rape, sexual slavery, enforced prostitution, forced pregnancy... enforced
13
Geneva Conventions of 12 August 1949 for the Protection of War Victims, and of Additional Protocol II
thereto of 8 June 1977
10
sterilization or any other form of sexual violence as a serious violation of article 3 common to
the four Geneva Conventions armed conflict not of an international character.
A case of particular importance with Crime of sexual violence and rape the case of Prosecutor
V Akayesu (ICTR) was the first to detail the elements of rape in a global context under the
crime of genocide. Akayesu put forth the following definition for sexual violence including
rape.
“Physical invasion of a sexual nature …. Any act of a sexual nature 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”14. It was at the trial of this case where the chamber acknowledges previous
neglect in cases of Sexual Violence and Rape and asserted to end such practice. As Sexual
Violence and Rape cases are in the ICC the onus of proof stood quite high, however
fortunately in this chamber no limitations were put to coercion and thus included elements
such as threats and intimidation, additionally the situation of armed conflict itself amounted
to a coercive situation. Clarifying that in situations of coercion lack of consent need not be
proven 15.
What went wrong in dealing with crimes of sexual violence
For a while a crime of sexual violence was solely regarded as one that was perpetrated against
/ towards women and the girl child. But with a woman’s standing in society only recently
gaining more importance and equality, the political will to afford protections, and dedicate
resources for justice and recourse seemed to honestly take a back seat to other ‘more
pressing’ areas of concern in the minds of the previously entirely male dominated arena of
politics and justice.
Previous issues encountered with the Crime of sexual violence and rape other than the
ignorance of it was the inconsistencies in the definitions, the ICC, ICTY, ICTR all had different
definitions. The issue posed by different definitions is that a gap is created in the spaces where
domestic and international differences exist, and where crimes are committed in a country
whose laws don’t classify say the rape of a woman by another woman as “rape”. Why this is
important is because national legal systems are a driving force in acting as deterrents towards
crime. When standards differ from region to region, and international standards are not
upheld then civilians suffer. Those most at risk like the internally displaced women and
14
The Prosecutor v. Jean-Paul Akayesu (Trial Judgement) 1998, ICTR-96-4-T, 596-598, 686-68
15
K. Alexa Koenig Ryan Lincoln Lauren Groth, THE JURISPRUDENCE OF SEXUAL VIOLENCE, Sexual Violence &
Accountability Project Working Paper Series, 2011 (University of California)
11
children become easy targets in countries undergoing active conflict. If States in their own
capacities can hold to a unified standard and a separate core crime is activated to investigate,
prosecute, and charge Crime of sexual violence and rape, then grievous and prevalent
violations of such may be less likely to happen.
We can look at the cases of Prosecutor v. Jean Paul Akayesu16 and Prosecutor v. Anto
Furundzija17 as an example. In the Akayesu case the ICTR defines rape as a as “a physical
invasion of a sexual nature, committed on a person under circumstances which are coercive”
but in the Furundzija case the rape was defined as the “sexual penetration, however slight:
of the vagina or anus of the victim by the penis of the perpetrator or any other object used
by the perpetrator; or of the mouth of the victim by the penis of the perpetrator; by coercion
or force or threat of force against a victim or third person”.
The differences that can be seen is that Akayesu’s definition was far vaguer than the one in
Furundzija, and the Furundzija case remained far more gender neutral in its terminology and
additionally stipulated that captivity nullified any form of genuine consent. The Rome statute
definitions of rape we see now are a mixture of what was set out at the ICTR and ICTY
Current standing / Progress
In the case of Ntaganda (08 July 2019), Bosco Ntaganda was convicted on 18 charges of War
Crimes and Crimes against humanity. This landmark judgement sparks the ICC’s first final
judgement involved charges of Sexual Violence and Rape18, while previous convictions have
been made such as in the case of Jean Pierre Bemba, Bemba was later acquitted of all charges
regarding sexual crimes in 2018, and the final judgement of the case put strain on the ability
to gain successful prosecutions when it came to Crimes of Sexual Violence and Rape.
The relevance of the Ntaganda case lies in the fact that this was the first time the ICC
recognised that Crime of sexual violence and rape can be committed by members of an armed
group towards their own members – male and female. While in domestic contexts who
perpetrated the crime against who served no relevance, it was only two years ago where the
ICC recognised the criminalization of perpetrating Crime of sexual violence and rape against
16
The Prosecutor v. Jean-Paul Akayesu (Trial Judgement) 1998, ICTR-96-4-T
Prosecutor v. Anto Furundzija (Trial Judgement), IT-95-17/1-T, International Criminal Tribunal for the former
Yugoslavia (ICTY),1998
17
18
Prosecutor (on the application of Victims) v Ntaganda (Bosco), ICC-01/04-02/06-2384-Red
12
their own people, despite the atrocity of sexual slavery and rape being perpetrated
ubiquitously against women and children within militia camps.
Why should it be a Core Crime?
Crime of sexual violence and rape should be considered a core crime to provide
comprehensive protection of CIVILLIANS who the worst are affected by armed conflict and
war – thrust into violence, displacement, persecution, and instability not of their own making
Crime of sexual violence and rape are currently so prevalently committed in times of conflict
whether as a tool of war/ combat, or just a means of opportunistic gratification and the
assertion of power. For Sexual Violence to be tried at the ICC it must be linked to one of the
4 core crimes, its eligibility to is context specific and it ends up being measured by a yard stick
of egregious or regular, an action which is wholly reductive to the actual gravity of the crime
and its hostile assault on the autonomy of another. Thus because of its need to come under
the other core crimes and satisfy their criterions, it stands to reason that it would be easier
to not only investigate and prosecute, but inevitably provide just recourse if it was a Core
Crime on its own.
Moreover it cannot be stressed enough that on a national level Crime of sexual violence and
rape amounts to a criminal offence, and thus on an international level the onus of proof for
proving “ sexual violence and rape” should not increase to levels that make it “negligible”
when the burden of proof attaching it to one of the Core Crimes is not met , especially when
such crimes are a violent assault on the autonomy, mental well-being and dignity of another
human being.
We can take the case of Emmanuel Rukundo v The Prosecutor 19as an example where
underground 8 in his appeal Rukundo submitted that the Trial Chamber was erroneous in
convicting him of Sexual Assault of Witness CCH. The Appeals Chamber (with the dissent of
Judge Pocar) granted this ground of appeal because they found that Rukundo’s act could have
been construed as opportunistic without the intent to commit genocide as it appeared to be
spontaneous, their analysis then inferred that the sexual assault while happening during a
genocide was not part of the genocide. In this case the act of sexual assault was attached to
the commission of genocide, however the Appeals chamber deemed that the general context
mass violence against Tutsis did not constitute genocidal intent.20
19
Rukundo v. The Prosecutor (Appeal Judgment), Case No. ICTR-2001-70-A, International Criminal Tribunal for
Rwanda (ICTR), 20 October 2010
20
Ibid, para 388, 576
13
There is no mild or negligible torture and there should be no mild or negligible perpetrations
of Sexual Violence, the fact that crimes of sexual violence were held to such a high standard
within international criminal law shows one of the clear problems with crimes of sexual
violence not having its own category under the core crimes. An attachment to the commission
of other crimes automatically attaches to it an inherent need to prove mass casualty, specified
targeting of a group or the perpetration by military officials with a purpose to harm a group.
It negates the atrocity imposed upon the individual and neglects the instances where crimes
of sexual violence are not used as a tool of war but occur because of the assertion of power,
or the forceful appropriation of another person’s physical self for the means of sexual
gratification.
A lack of weight to classify Crime of sexual violence and rape under either Genocide, War
Crimes, Crimes Against Humanity or Crimes of Aggression should not mitigate clear criminal
action. By activating it as a Core Crime in itself, this can bring into force mechanisms,
legislations and procedures that can ensure that appropriate measure can and will be taken
to ensure that the criminal action of “Sexual Violence and Rape” is covered, fairly, inclusively,
comprehensively to afford remedy to the aggrieved and violated – regardless of whether it
has satisfied the elements of one of the Core Crimes. Prosecution of Sexual Violence should
not be conditional on its context but rather the criminal action itself.
Inescapable nature of Sexual Violence and the insidious prior silence of the international
community and the ICC when it comes to crimes transgressed around individuals, puts a dark
spin on the saying the needs of the many outweigh the needs of a few.
Another reason for classification lies in the concept of fair labelling which is a principle that
played a part in the creation of international crimes and concepts within International Law.
The Labels of the four core crimes can be attributed to this principle, which separated them
from ordinary crimes. The idea of fair labeling is specificity towards crime and punishment, in
international law it plays a key role in ensuring that ICL and ultimately the ICC fulfills the
retributive roles they play withing the global arena to deter and condemn grievous crimes
such as the four core crimes; genocide, crimes against humanity, war crimes, crimes of
aggression – the element of punishment , condemnation and deterrent is the main actor in
the prevention of these crimes being repeated and perpetrated.
When labeling crimes, and the elements under its purview what becomes important is not
only the wording to portray its seriousness. But also, appropriate specificity (gender neutral)
that encompass all possible aspects in a balanced manner that neither omits specific actions
nor brings under it all perceived violations. Appropriately labeled crimes can avoid instances
of convictions being overturned on technicalities as seen in the case of Rukundo (see above),
it also leads to greater public understanding and contemp. Another important aspect of that
gets addressed for the activation of the Crimes of sexual violence and rape and the fair
14
labelling of such is that the main purpose of ICL is served – while we understand ICL to be the
body that imposes individual criminal responsibility on the perpetrators of crimes , ICL
additionally preforms the function of showcasing those afflicted by conflict and devastation
that the suffering they have endured has been recognised and is being taken seriously.
After years upon years of Crimes of sexual violence and rape being neglected, the activation
of it would spark a light in the bleak and grim landscape of sexual violence and rape in conflict,
by finally showcasing its recognition and the portrayal of its utmost importance to ICL,
especially in showcasing its seriousness. Accurate and fair labels are also very important for
the calibration and attaching of penalties to such crimes.
As previously mentioned, Crimes of sexual violence and rape are hinged on the fulfilment of
the other four core crimes and are punished as per the sanctions attached to those crimes. In
domestic law you wouldn’t punish rape under the charge of murder and the fact that this
happens in ICL is inexplicable. Labels should reflect the crime, and as such it follows that the
punishment then too will reflect the crime adhering to the maxim of the punishment must fit
the crime. 21
Conclusion
Thus, Crimes of sexual violence and rape were not regarded as issues of prime importancedecades after its entrenchment in the Rome Statute the continued perpetrations of sexual
crimes plagued arenas of conflict. And while the world has seen significant progress in this
area due to the feminist movement, state, and international response to Crimes of sexual
violence and rape has not reflected the vigour and progressive tone that advocates for the
condemnation of such. However, with progress with can further afford those vulnerable to
exploitation and violation protections and methods of recourse.
However, when it comes to affording recourse, reparations, and justice on an international
level there have been legal issues creating hurdles. Hurdles that see convictions overturned
in the Appeals Chambers on technicalities and matters of law regarding insufficient evidence
due to the impossibly high burdens required to acquire a conviction. High burdens that are
brought about by the tethering of these Crimes to the other four Core Crimes, and thus in
21
Conor McCarthy, ‘Victim Redress and International Criminal Justice: Competing Para-digms, or Compatible
Forms of Justice?’, 10 Journal of International Criminal Justice (2012)
Bill Wringe, ‘Why Punish War Crimes? Victor’s Justice and Ex-pressive Justifications of Punishment’, 25 Law and
Philosophy (2006)
Competing Para-digms, or Compatible Forms of Justice?’, 10 Journal of International Criminal Justice (2012)
15
doing so diminishing the hostility and atrocity of violating another’s bodily autonomy by
requiring said crime to also prove the burdens of one of the other four Core Crimes.
Since its inception the ICC’s first successful conviction for sexual crimes in 2016 against JeanPierre Bemba22, however the Appeals chamber would later acquit bemba of all charges.
The final thought thus is that for a mechanism that provides protection to all, on a balanced,
inclusive, comprehensive, and individualistic platform, the international community should
consider the activation of Crime of sexual violence and rape to being its own Core Crime, so
that the ICC may be provide with specialized legislations to investigate and thus prosecute
said crimes, without undue burden and considerations that are unrelated to the Crime of
Sexual Violence and Rape.
The opportunity to establish a new convention that incorporates lessons learned and
progressive jurisprudence, as well as to redress gaps and regressive political compromises,
can shift the paradigms around which experiences are deserving of justice and trigger State
obligations to act. Such a legal framework could be transformative for so many who have
been left out or on the margins of existing frameworks, including women.
Word Count : 4035
22
ICC, Prosecutor v. Bemba, ICC-01/05-01/08, Judgment (Mar. 21, 2016)
16
BIBLIOGRAPHY
PRIMARY
Cases
Rukundo v. The Prosecutor (Appeal Judgment), Case No. ICTR-2001-70-A, International
Criminal Tribunal for Rwanda (ICTR), 20 October 2010
The Prosecutor v. Anto Furundzija (Trial Judgement), IT-95-17/1-T, International Criminal
Tribunal for the former Yugoslavia (ICTY),1998
The Prosecutor v. Bemba, ICC-01/05-01/08, Judgment (Mar. 21, 2016)
The Prosecutor v. Jean-Paul Akayesu (Trial Judgement) 1998, ICTR-96-4-T
Statutes and Conventions
Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12,
1949, art. 27, 6 U.S.T. 3316, 75 U.N.T.S. 287 (entry into force Oct. 20, 1950)
Geneva Conventions of 12 August 1949 for the Protection of War Victims, and of Additional
Protocol II ther eto of 8 June 1977
Rome Statute
Statute of the International Criminal Tribunal for Rwanda, U.N. Doc. S/RES/955
Statute of the International Criminal Tribunal for the Former Yugoslavia, U.N. Doc. S/25704
SECONDARY
Books
Koeng A, Lincoln R, Groth L , THE JURISPRUDENCE OF SEXUAL VIOLENCE , Sexual Violence &
Accountability Project Working Paper Series , 2011 ( University of California )
17
Bergsmo M, Thematic Prosecution Of International Sex Crimes (Torkel Opsahl Academic
EPublisher 2012)
Bill Wringe, ‘Why Punish War Crimes? Victor’s Justice and Ex-pressive Justifications of
Punishment’, 25 Law and Philosophy (2006)
Conor McCarthy, ‘Victim Redress and International Criminal Justice: Competing Para-digms,
or Compatible Forms of Justice?’, 10 Journal of International Criminal Justice (2012)
Copelon, R. (1995a). Gendered war crimes: Reconcenptualizing rape in time of war. In J. Peter,
& A. Walper (Eds.), Women’s rights human rights: International feminist perspective (pp. 197214). New York NY: Routledge
Spees P, 'Women’S Advocacy In The Creation Of The International Criminal Court: Changing
The Landscapes Of Justice And Power' (2003) 28 Signs: Journal of Women in Culture and
Society <https://www.jstor.org/stable/10.1086/375498> accessed 30 September 2021
Gerhard Werle, Florian Jessberge, Principles of International Criminal Law ( 4th ed 2020)
Journals
Bedont B, and Hall-Martinez K, 'Ending Impunity For Gender Crimes Under The International
Criminal Court' (1999) Vol.6, No.1 The Brown Journal of World Affairs
Competing Para-digms, or Compatible Forms of Justice?’, 10 Journal of International Criminal
Justice (2012)
“Developments in the Law: International Criminal Law.” Harvard Law Review 114, no. 7 (2001):
1943–2073. https://doi.org/10.2307/1342499 [Last accessed : 29 September 2021]
Peskin, Victor. "Beyond Victor's Justice? The Challenge of Prosecuting the Winners at the
International Criminal Tribunals for the Former Yugoslavia and Rwanda." Journal of Human
Rights 4, no. 2 (2005)
Ellis, Mark . Breaking the Silence: Rape as an International Crime, 38 Case W. Res. J. Int'l L.
225 (2007) Available at: https://scholarlycommons.law.case.edu/jil/vol38/iss2/3
18
Reports
FIDH, 'Accountability For Sexual And Gender-Based Crimes At The ICC: An Analysis Of
Prosecutor Bensouda’S Legacy' (2021) https://www.fidh.org/IMG/pdf/cpiproc772ang-1.pdf
[accessed 6 October 2021]
UNSC, Conflict-related sexual violence: Report of the Secretary-General (S/2021/312)
Final Report of the Special Rapporteur on the Situation of Systematic Rape, Sexual Slavery and
Slavery- like Practices During Periods of Armed Conflict, 50 UN ESCOR, UN Doc.
E/CN./4/Sub.2/1998/13 (1998), and Update to the Final Report of the Special Rapporteur on
the Situation of Systematic Rape, Sexual Slavery and Slavery-like Practices During Periods of
Armed Conflict, 52 UN ESCOR, UN Doc. E/CN.4/Sub.2/2000/21/(2000); Special Rapporteur on
Violence Against Women, its Causes and Consequences, 54 UN ESCOR, UN Doc.
E/CN.4/1998/54/(1998).
Resolutions
UN Security Council, Security Council resolution 1265 (1999) [on protection of civilians in
armed
conflicts],
17
September
1999, S/RES/1265
(1999), available
at:
https://www.refworld.org/docid/3b00f23c20.html [accessed 6 October 2021]
ted Nation Security Council, Resolution 1820 (2008), S/Res/1820 (2008)
Websites
International Criminal Court (ICC), Fact Sheet, Understanding the International Criminal
Court, available at: https://www.icc-cpi.int/iccdocs/pids/publications/uicceng.pdf
Office of the High Commissioner for Human Rights, Guidance Material, The Prosecution of
Sexual Violence in conflict: The Importance of Human Rights as Means of Interpretation
19
Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for
the Prosecution of
Crimes Committed During the Period Democratic Kampuchea, 10 August 2001,
NS/RKM/0801/12, I supplemented and superseded by the Agreement between the
United Nations and the Royal Government of Cambodia Concerning the Prosecution
Under Cambodian Law of Crimes Committed During the Period Democratic
Kampuchea, 6 June 2003
20