The International Criminal Court in addressing the "most serious crimes of concern to the international community as a whole," has provided an international definition of rape. The Rome Statute has acknowledged sexual assault as both a crime against humanity and a war crime.
Following the creation of two ad hoc tribunals in the former Yugoslavia and Rwanda, the International Law Commission began to create a permanent international criminal court in the 1990s. In 1994, the International Law Commission submitted a draft statute for an international criminal court to the U.N. General Assembly. From 1994 to 1995, an Ad Hoc Committee on the Establishment of an International Criminal Court met to continue work on the draft. From 1996 to 1998, the Preparatory Committee on the Establishment of an International Criminal Court (the ICC) was formed to take over the Committee's work and to prepare a consolidated draft text to submit at a forthcoming diplomatic conference. In 1998, the General Assembly convened the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court in Rome, Italy in order "to finalize and adopt a convention on the establishment of an international criminal court."
The Rome Statute of the International Criminal Court (Rome Statute) was adopted and opened for signature on July 17, 1998. The Rome Statute entered into force on July 1, 2002, and to date there are 139 signatories and 89 State parties to the statute. Twenty-four CEE/CIS countries have signed the Rome Statute and 17 states have ratified it (Albania, Bosnia and Herzegovina, Bulgaria, Croatia, Estonia, Georgia, Hungary, Latvia, Lithuania, Mongolia, Poland, Romania, Serbia and Montenegro, Slovakia, Slovenia, Tajikistan, and the Former Yugoslav Republic of Macedonia).
The Rome Statute establishes a permanent International Criminal Court with jurisdiction over individuals limited to the "most serious crimes of concern to the international community as a whole." The Rome Statute defines these serious crimes as "the crime of genocide; crimes against humanity; war crimes; and the crime of aggression." Following the Statute for the International Criminal Tribunal for the Former Yugoslavia, violence that disproportionately affects women is included as a crime against humanity. Article 7 (g) of the Rome Statute states "crime against humanity means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: . . . Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity." Article 7(g) also states: “persecution against any identifiable group or collectivity on…gender…or other grounds that are universally recognized as impermissible under international law," as well as other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health. Grave breaches of the Geneva Conventions include torture or inhuman treatment and willfully causing great suffering, or serious injury to body or health. Other serious violations of the laws and customs of war include committing outrages upon personal dignity including humiliating and degrading treatment and committing rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions. One of the most important innovations of the Rome Statute was the recognition that individuals can be targeted on account of their gender and, thus, merit specific protection under international law. From U.N. Economic and Social Council, Contemporary Forms of Slavery: Systematic rape, sexual slavery and slavery-life practices during armed conflict, 31 (E/CN.4/Sub.2/2000/21) (6 June 2000). (PDF, 36 pages). The Rome Statute entered into force on 1 July 2002.
Definition of Rape to be Applied by the ICC
The Rome Statute authorized the Preparatory Commission for the International Criminal Court to prepare a draft text of the Elements of Crimes within the ICC's jurisdiction.
Elements of the Crime Against Humanity of Rape:
(1) The perpetrator invaded* the body of a person by conduct resulting in penetration, however, slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body.
(2) The invasion was committed by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or another person, or by taking advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine consent.**
(3) The conduct was committed as part of a widespread or systematic attack directed against a civilian population.
(4) The perpetrator knew that the conduct was part of or intended the conduct to be a part of a widespread or systematic attack directed against a civilian population.
*The concept of "invasion" is intended to be broad enough to be gender-neutral.
**It is understood that a person may be incapable of giving genuine consent if affected by natural, induced or age-related incapacity.
Elements of a War Crime of Rape in an International Armed Conflict:
(1) The perpetrator invaded the body of a person by conduct resulting in penetration, however, slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body.
(2) The invasion was committed by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or another person, or by taking advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine consent.
(3) The conduct took place in the context of and was associated with an international armed conflict.
(4) The perpetrator was aware of the factual circumstances that established the existence of an armed conflict.
Elements of War Crime of Rape in Internal Armed Conflict:
(3) The conduct took place in the context of and was associated with an armed conflict not of an international character.
Related Links:
Coalition for the International Criminal Court
International Criminal Court (ICC) at the United Nations
International Criminal Court Homepage