Understanding International Crimes: Rape Elements, Consent Principles, and Legal Distinctions

Elements of Rape ICC Article 8 (2) (b) (xxii)-1 War crime of rape Elements 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.

Rule 70 Principles of evidence in cases of sexual violence In cases of sexual violence, the Court shall be guided by and, where appropriate, apply the following principles: (a) Consent cannot be inferred by reason of any words or conduct of a victim where force, threat of force, coercion or taking advantage of a coercive environment undermined the victim s ability to give voluntary and genuine consent ( ).

Elements of Rape Criminal Code of Ukraine Article 152. Rape 1. Committing sexual acts involving vaginal, anal or oral penetration into the body of another person using the genitals or any other item, without the voluntary consent of the victim (rape) shall be punishable by imprisonment for a term of three to five years. Note: Consent shall be deemed voluntary if it is the result of a person's free act and deed, with due account of attending circumstances.

What makes international crimes different from domestic crimes?

What differentiates international crimes from ordinary crimes? Contextual Elements International Crime Act of Sexual Violence Armed conflict/ Widespread or systematic attack/ intent to destroy specific group War crime/Crime against humanity/ Genocide

Article 438 of the Criminal Code of Ukraine Cruel treatment of prisoners of war or civilians, deportation of civilian population to engage them in forced labour, pillage of national treasures on occupied territories, use of methods of the warfare prohibited by international instruments, or any other violations of rules of the warfare stipulated by international treaties, ratified by the Verkhovna Rada of Ukraine [ ].

Kunarac et al, Appeal Judgment, para. 58 What ultimately distinguishes a war crime from a purely domestic offence is that a war crime is shaped by or dependent upon the environment the armed conflict in which it is committed. It need not have been planned or supported by some form of policy. The armed conflict need not have been causal to the commission of the crime, but the existence of an armed conflict must, at a minimum, have played a substantial part in the perpetrator s ability to commit it, his decision to commit it, the manner in which it was committed or the purpose for which it was committed. Hence, if it can be established, as in the present case, that the perpetrator acted in furtherance of or under the guise of the armed conflict, it would be sufficient to conclude that his acts were closely related to the armed conflict. The Trial Chamber s finding on that point is unimpeachable.

Nexus the crime was perpetrated during the period of the conflict; the crime took place in an occupied area; the manner in which the crime was committed; the purpose for which the crime was committed; whether the perpetrator was a combatant; whether the perpetrator held a position in the civilian occupation authorities, political structures or Russian state security services; whether the victim was a non-combatant; whether the violation took place during house searches; whether the crime was accompanied by questioning/interrogation related to the conflict.

Protected persons civilians (people not fighting directly) people who are displaced due to armed conflict; prisoners of war; detainees; wounded or sick. In whatever cases you are working on, when gathering evidence that might go to show the protected status of victims(s), be careful not to jump to assumptions. For example, if a witness asserts that a victim of a killing was civilian, always query the basis for their assertion. This way, the investigation will be driven by tested facts.

Crimes Against Humanity You can show that an incident of sexual violence is part of a widespread or systematic attack against the civilian population by (for example): Showing that the victim was targeted for the same reasons as others harmed in the attack. Showing that the victim suffered other harms that were part of the attack. Showing that the perpetrator committed other crimes that were part of the attack. Showing that the sexual violence was committed at the same time or in the same location as other crimes that formed part of the attack.

Factors showing that the attack was directed against a civilian population can include: The means and methods used in the course of the attack The status of the victims The number of the victims The nature of the crimes committed during the attack

Whether an act of sexual violence is classified as a war crime or crime against humanity, the perpetrator s motivations for committing the sexual violence (whether it was personal gain, gratification, or previous acquaintance with the victim) are irrelevant.

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