Module 3 Legal framework to monitor and investigate CRSV Notes for the facilitator Slide 2 Definition of sexual violence • •
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This is the definition of sexual violence according to international human rights law. Sexual violence is a serious crime that occurs, to some extent, in all societies in times of conflict or of peace. It can be manifested in many different forms. It is not only limited to physical invasion of the human body through penetrative acts or direct physical assault. Instead, it includes all attacks against a person’s intimate sexual sphere under circumstances that are coercive, e.g. touching of body parts, forced nudity, humiliating medical examination, targeted injuries to breasts and genitals, intentional infection with sexually transmitted diseases including HIV/AIDS, threats of a sexual nature, sexual harassment etc. These different forms of sexual violence are gender-neutral. They can be perpetrated against women, men, girls or boys. Sexual violence that is directed at an individual or group of individuals on the basis of their sex/gender can also be viewed as a form of gender based violence. In addition to being a crime in most national jurisdictions, sexual violence is a serious human rights violation (e.g. violation to the right to life, personal integrity and security of person, freedom from torture and other ill-treatment, highest attainable standard of health). In situations of armed conflict, sexual violence may be recognised as a grave breach of international humanitarian law. Under certain circumstances, sexual violence can constitute an international crime, (e.g. war crime, a crime against humanity, a constituting act of genocide). When linked with an armed conflict, such crimes may be considered CRSV for SCR 1960 reporting purposes. The inclusion of sexual violence as self-standing offence under the Rome Statute reinforces the notion of sexual violence as a threat to peace and security.
Slide 3 Different forms of sexual violence •
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According to the statutes and case law of the ICTY, ICTR, ECC of Cambodia and the Rome Statute of the ICC, sexual violence encompasses the following offences: rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization and any other form of sexual violence of comparable gravity, which may include indecent assault, trafficking, inappropriate medical examinations and strip searches. This is important since it can be a potential trigger to UNSC action, including ICC referrals. The constituting elements of the different forms of sexual violence are explicit in the Rome Statute of the ICC, Appendix 2 on Elements of Crimes.
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Article 6 refers to genocide; article 7 refers to crimes against humanity; and article 8 refers to war crimes.
Slide 4 Definition of rape •
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The bulk of the definition of the violation of rape is the same. What may change is the context, circumstances or pattern, in which the violation is committed. This means that the violation of rape may be part of more than one international crime or violation. For example, rape as a war crime takes place in the context of and is associated with an armed conflict. Whereas, rape as a crime against humanity is committed as part of a widespread or systematic attack directed against a civilian population. The definition 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.
Slide 5 Sexual violence as a war crime • • •
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Article 8 of the Rome Statute. Sexual violence perpetrated in either an international or non-international armed conflict may amount to a war crime. War crimes include grave breaches of the Geneva Conventions, such as causing great suffering, or serious injury to body or health, and torture and inhuman treatment. Protected persons include civilians and persons not taking part in hostilities, including prisoners of war and other members of armed forces hors de combat. Other serious violations of the laws and customs applicable in armed conflict, including different forms of sexual violence, may also considered war crimes. The element of an ‘association’ links to the term ‘conflict-related’. It implies that it is not enough that an act is committed during conflict; it must also have an association or relationship with the conflict. It is a requirement of a nexus to the conflict, and it excludes crimes of a random, incidental nature that occur in a country affected by conflict but that have no connection with it.
Slide 6 Sexual violence as a crime against humanity • •
Article 7 of the Rome Statute. The reference to ‘knowledge of the perpetrator’ is not a requirement that the perpetrator would have knowledge of all characteristics of the attack or the precise details of the plan or policy of the State or organisation, but the perpetrator must be aware that his/her action formed part of it. In the case of an emerging widespread or
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systematic attack against a civilian population, the intent clause of the last element indicate that this mental element is satisfied if the perpetrator intended to further such an attack. The acts do not need to constitute a military attack. It is understood that policy to commit such attack requires that the State or organisation actively promote or encourage such an attack against the civilian population. Sexual violence may reach the scale or level or organisation of a CaH, if, for example, it is part of either a government policy or a wide practice of atrocities tolerated or condoned by a government, de facto authority or organised armed group. CaH do not require a connection with or the existence of an armed conflict. However, sexual violence may be increase during the unrest that presages armed conflict and its scale and severity often continue post-conflict.
Slide 7 Sexual violence as a form of torture ▪ ▪
According to the Rome Statute, sexual violence can constitute torture amounting to WC or CaH. Definition built on CAT. ICTY recognized CRSV as torture in certain cases concerning interrogation, punishment and intimidation (e.g. 1998 Celebici).
Slide 8 Sexual violence as an element of genocide • •
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Article 2 of the Convention on Genocide; article 6 of Rome Statute. Sexual violence may be used to attack the identity of communities, alter the composition of coveted territory, cause humiliation and terror in order to fragment the group, or transmit a new ethnic identity to the child. Rwanda: sexual violence as a step in the process of group destruction. Bosnia: linked to a strategy of ethnic cleansing through forced impregnation.
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