Beyond Rape – The evolving concept of ‘sexual violence’ under international criminal law.
First published in Regarding Rights
In the past two decades the international tribunals for the former Yugoslavia and Rwanda have developed a rich jurisprudence on sexual violence crimes, and the younger international courts, the International Criminal Court (ICC) and the Special Court for Sierra Leone in particular, are beginning to follow suit. There has also been a move to codify sexual violence crimes under international law, the current high water mark being the 1998 Rome Statute of the International Criminal Court (the Rome Statute), which entered force in 2002.
The Statute recognises ‘rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization and any other form of sexual violence of a comparable gravity’ as crimes against humanity, and the same range of offences as war crimes in international and non-international armed conflicts. ‘Rape’ and ‘sexual violence’ are also recognised as acts of genocide in the ICC Elements of Crimes, the supplementary text that defines the crimes enumerated in the Rome Statute.
The inclusion of these crimes in the Rome Statute was seen by many feminist legal scholars and gender justice activists as a sign of a new norm of accountability for sexual violence under international law. In that context, the absence of sexual violence charges in the ICC’s first case, against Congolose warlord Thomas Lubanga Dyilo, was widely viewed as a step backwards. Human rights groups including Women’s Initiatives for Gender Justice, Human Rights Watch and Avocats Sans Frontières questioned the (then) ICC Prosecutor Luis Moreno Ocampo’s decision to charge Lubanga with the recruitment and use of child soldiers only, when it appeared his forces had also committed other serious crimes, including sexual violence crimes, against civilians in the Congo.
Rosemary Grey is a PhD Student in the School of Social Sciences at the University of New South Wales (UNSW) and a visiting scholar at the Centre for International Governance and Justice. Her research interests are gender issues in international criminal law, focusing particularly on the prosecution of sexual and gender-based violence at the International Criminal Court.