Post World War II: Sexual Violence and Genocide

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Parallel to the post World War II developments of IHL, rape incrementally gained recognition as an international crime, including as a crime against humanity. Rape was accepted as an express form of crimes against humanity via the incorporation of international crimes into national military codes and national legislation. More recently, the recognition of rape as an international crime was anchored by its listing in the statutes of international courts and tribunals and their modern judicial interpretation.
The declarations, resolutions, reports, commissions, preparatory meetings and other precursors of the specially mandated international criminal courts and tribunals created in the 1990s and early years of the twenty-first century, foresaw that the jurisdiction invoked by these international bodies would certainly include crimes of sexual violence, as central violations to IHL and international criminal law, including crimes against humanity. The constitutive instruments of these international judicial bodies, in varying degrees, bore out that prediction. The governing statutes of the International Criminal Court for the former Yugoslavia and the International Criminal Court for Rwanda the Special Panels for Serious Crime and the International Criminal Court (ICC) list the crime of rape, together with other expressly named sex crimes such as trafficking and slavery, that are, on their face not of a sexual nature, but crimes whose actus reus could certainly include acts of sexual violence.
Provisions of these constitutive instruments that established the subject-matter jurisdiction of these international bodies mandated that the following crimes involving sexual assault could be the basis for criminal charges:

a) The...

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The definitions in the Statutes in respect of genocide, crimes against humanity and war crimes do not spell out all the general legal elements of each category or the legal elements in relation to each of the underlying crimes such as rape and sexual slavery. However the tribunals have developed case law in this respect.

ii. Violent and serious nature of relevant crimes

Crimes of a sexual nature – i.e. gender-based, sex-based or sexual crimes – amounting to genocide, crimes against humanity and war crimes are almost always physically violent and/or gravely denigrating. By nature crimes involving sexual violence are serious – otherwise they would not constitute or amount to atrocity crimes. For the purposes of this paper, atrocity crimes of a sexual nature, sex-based atrocity crimes and gender-based atrocity crimes are generally referred to as “sexual violence”.

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