Derecho a seguir las acciones administrativas y/o judiciales que correspondan:

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sterilization can also satisfy the actus reus of genocide, and amount to the crime of genocide.⁴⁷⁷ By Article 7 (1) (g)-5 of the ICC Elements, the elements 1 and 2 of the crime are that: (a) the perpetrator deprived one or more persons of biological reproductive capacity; and (b) the conduct was neither justified by the medical or hospital treatment of the person concerned nor carried out with their genuine consent. The deprivation excludes birth-control measures which have a non-permanent effect in practice.⁴⁷⁸ Furthermore, for the purpose of the Article, consent obtained through deception does not amount to genuine consent.⁴⁷⁹

Article 7 (1) (g) of the ICC Statute concludes with the crime: ‗or any other form of sexual violence of comparable gravity‘. The crime of ‗sexual violence‘ operates as a residual clause allowing courts to exercise jurisdiction over any other un-enumerated serious sexual assaults of comparable gravity to the named sex-based crimes.⁴⁸⁰ When committing this crime, the perpetrator could inflict sexual violence on the victim or force the victim to perform sexual acts.

Sexual violence could include sexual mutilation and sexual humiliation.⁴⁸¹ This category of crime is made up of the following elements: (a) the perpetrator committed an act of a sexual nature against one or more persons or caused such person or persons to engage in an act of a sexual nature; (b) by force or threat of force or coercion; and (c) such conduct was of a gravity comparable to the other offences in Article 7 (1) (g) of the ICC Statute.

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intent is to destroy, in whole or in part, a national, ethnical, racial or religious group.⁴⁸² The crime of persecution is often described in terms of the violation of the fundamental rights of a group of persons, based on discriminatory grounds. Persecution is distinguished by the perpetration of the prohibited acts on discriminatory grounds. In Prosecutor v Nahimana, Barayagwiza and Ngeze, the ICTR defined the crime against humanity of persecutions as consisting of an act or omission which discriminates in fact and which, denies or infringes upon a fundamental right laid down in international customary or treaty law (the actus reus); and was carried out deliberately with the intention to discriminate on one of the listed grounds, specifically race, religion or politics (the mens rea).⁴⁸³ This definition is largely consistent with the one provided in the ICC Statute.

While Article 7 (2) (g) of the ICC Statute defines persecution as ‗the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity,‘ Article 7 (1) (h) of the ICC Statute prohibits persecution of any identifiable group or collectivity on political, racial, national, ethnic, cultural, gender, or other grounds that are universally recognized as impermissible under international law, in connection with any crime within the jurisdiction of the court. However, the problem with the prohibition is that the acts that may constitute persecution are indeterminate.

In Prosecutor v Kupreskic, the ICTY held that neither international treaty nor case law provides a comprehensive list of illegal acts encompassed by the charge of persecution, and persecution as such is not known in the world‘s major criminal justice systems. Thus, the crime of persecution needs careful and sensitive development in light of the principle of nullum crimen

482 Article 6 of the ICC Statute.

483 Prosecutor v Nahimana, Barayagwiza and Ngeze, (ICTR Appeals Chamber), 28^th November 2007, para.

985. See also Prosecutor v Bagosora, Kabiligi, Ntabakuze and Nsengiyumva, (ICTR Trial Chamber), 18^th December 2008, para. 2208; and Prosecutor v Bikindi, (ICTR Trial Chamber), 2^nd December 2008, para.

435.

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sine lege.⁴⁸⁴ The acts of persecution or deprivation of fundamental right must be of a gravity or severity comparable to other crimes against humanity.⁴⁸⁵ Tribunal jurisprudence shows that the underlying acts of persecution need not be considered crimes in international law. For example, harassment, humiliation, psychological abuse, as well as denial of the rights of employment, freedom of movement, proper judicial process, and proper medical care have been recognized as underlying acts of persecution.⁴⁸⁶

Although the list of persecutory acts is open-ended, a high threshold of ‗universal‘

recognition is required in order to satisfy the principle of legality. Cassese has observed that Article 7 of the ICC Statute is less liberal than customary international law with regard to the element of persecution: ‗in connection with any act referred to in this paragraph or any crime, within the jurisdiction of the court‘, as no such link is required under customary international law.⁴⁸⁷ Furthermore, Cassese expressed the view that: ‗since no mention is made of the possible victims of persecutions, or rather, as it is not specified that such persecutions should target ‗any civilian population,‘ the inference is warranted that not only any civilian group but also members of the armed forces may be the victims of this class of crime‘.⁴⁸⁸

However, with due respect to Cassese, the researcher is of the view that his proposition extends the scope of the crime beyond its statutory objective. The essence of crimes against humanity is to protect a civilian population from violence. Persecution requires a specific intent to target a person, group or collectivity, based on the prohibited grounds of discrimination.⁴⁸⁹ Yet, with respect to the requirement in the ICC Statute that the conduct was committed in

484 Prosecutor v Kupreskic (ICTY Trial Chamber II) 14^th January 2000 para. 618. See also Prosecutor v Semanza, (ICTR Trial Chamber), 15^th May 2003, paras. 348-49.

485 Prosecutor v Kupreskic, supra, paras. 619 and 621.

486 Prosecutor v Bikindi, (ICTR Trial Chamber), 2^nd December 2008, paras. 390-395, 397.

487 Cassese, op cit, p. 125.

488 Cassese, op cit, p. 118.

489 ICC Elements, Article 7 (1) (h), Element 3.

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connection with any act referred to in Article 7 (1), no additional mental element is required except the objective test of ‗widespreadness‘ or ‗systematicity.⁴⁹⁰