5.11.1. The Rome Statute of the ICC
Rape as a crime against humanity was originally cited under the Control Council Law No. 10,665 before the Rome Statute was established. Article 7 of the Rome
Statute of ICC666 inaugurated a list of crimes prosecuted under the ICC as crimes
against humanity.667 The ICC documentation on Rules of Procedure and
Evidence added components to the definitions of the crime of rape to clarify the situations where the rules are applicable. These includes:
‘A conduct committed as part of a widespread or systematic attack directed against a civilian population. Also, the perpetrator(s) knew that the conduct was part of, or intended the conduct to be part of a widespread systematic attack directed against a civilian population.’668
665 Control Council Law (CCL) No. 10 of 20 Dec. 1945, Punishment of Persons Guilty of War
Crimes, Crimes Against Peace and Against Humanity, available at: http://avalon.law.yale.edu/imt/imt10.asp, (14 March 2011).
666Cassese, Antonio 2002. The Rome statute of the International Criminal Court: a commentary
Volume 1.
667 Rome Statute Art. 7(l)(g), July 17, 1998, 2187 Rome Statute of the International Criminal
Court, 17 July 1998, (as corrected by the procèsverbaux of 10 November 1998, 12 July 1999, 30 November 1999, 8 May 2000, 17 January 2001 and 16 January 2002), Article 7: Crimes against humanity 1. For this Statute, ‘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: (…) (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation, or any other form of sexual violence of comparable gravity; (…) 2. For the purpose of paragraph 1: (a) “Attack directed against any civilian
population” means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or
organisational policy to commit such attack; (…) (f) “Forced pregnancy” means the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. This definition shall not in any way be interpreted as affecting national laws relating to pregnancy; (…) 3. For this Statute, it is understood that the term ‘gender’ refers to the two sexes, male and female, within the context of society. The term ‘gender’ does not indicate any meaning different from the above.
As defined above, there are two fundamental elements; ‘a widespread or systematic attack’ and ‘directed against a civilian population.’ These fundamental elements are vital to prosecutors to establish rape as a crime against humanity.669
It also constitutes a crime under domestic law,670 which does not fall under the
scope of the ICC.671
An additional vital point mentioned was the principle of complementarity which states that ‘the court may assume jurisdiction only when national legal systems
are unable to or are unwilling to exercise jurisdiction.’
Consequently, this raises the question of concurrent jurisdiction, which in actuality means that the national court has priority over the ICC.672 Mahnoush
Arsanjani argues against this principle while examining the law in action under the international criminal court, stating that parties to the statute holds the primary obligation for prosecuting violations of laws within its territory.673 The principle of
complementarity was also mentioned in Articles 1, 17 and 19 of the Rome Statute, and was argued by Yang to deal with selected serious crimes. This was to avoid overloading courts with cases, as well as limiting financial burdens on national governments.674
669 ‘Rome Statute of the International criminals court N Doc. A/CONF.183/9* hereinafter ICC
statute.’ (July1 7, 1998).
670M. Laden. ‘“Issues in domestic implementation of the Rome Statute of the international
criminal court in Nigeria, a round table presentation with parliament on the implementation of the Rome Statute in Nigeria. Organised by Nigerian coalition on the international criminal court (NCICC).’ (12 November 2002)
671Omoba Oladele Osinuga Esq ‘Nigeria and the ICC: The Dawn of a new era?Supreme Court
of Nigeria; European Union Rule of Law Mission EULEX. December 25, 2011.
672This is one of the important differences between the ICC and the two ad hoc Tribunals on the
former Yugoslavia and Rwanda. Under Article 9 of the Statute of the Yugoslav Tribunal and Article 8 of that of the Rwanda Tribunal, i n case of concurrent jurisdiction by the Tribunals and national courts, the Tribunals have primacy over national courts.
673Mahnoush H. Arsanjani and W. Michael Reisman. ‘The law-in-action of the International
Criminal Court’ (2005) 99(2) The American Journal of International Law 385.
674Lijun Yang. ‘On the principle of complementarity in the Rome Statute of the International
In addition, the principle was aimed at handling offences of grievous crimes of international concern, with the intention of harmonising general principles of criminal law with the procedures of common law.675
5.11.2. Declaration on the Protection of Women and Children in Emergencies and Armed Conflict
The horrors of wars are well-known facts, with women and children experiencing terrible challenges during conflict. The UN modified its laws in an attempt to prevent the inhumanity of war, to promote acceptable conduct for international as well as national conflicts.676 The Economic and Social Council proposed the
resolution of the Declaration on the Protection of Women and Children in Emergency and Armed Conflict in 1974.677 The proposed resolution was to
display the disapproval against the treatment of women and children of the civilian population during armed conflicts.678 Despite these unequivocal condemnations
of abuse against women, they are still subjected to brutality during conflicts.679
Therefore, the need for the United Nations to Commission Resolution 2444(XXIII)
675 Rome Statute Art. 7(l)(g), July 17, 1998, 2187 Rome Statute of the International Criminal
Court, 17 July 1998, (as corrected by the procèsverbaux of 10 November 1998, 12 July 1999, 30 November 1999, 8 May 2000, 17 January 2001 and 16 January 2002), Article 7: Crimes against humanity 1. For the purpose of this Statute, ‘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: (…) (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation, or any other form of sexual violence of comparable gravity; (…) 2. For the purpose of paragraph 1: (a) “Attack directed against any civilian population” means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organisational policy to commit such attack; (…)(f) “Forced pregnancy” means the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. This definition shall not in any way be interpreted as affecting national laws relating to pregnancy; (…) 3. For this Statute, it is understood that the term ‘gender’ refers to the two sexes, male and female, within the context of society. The term ‘gender’ does not indicate any meaning different from the above.
676 Spivak, Gayatri Chakravorty 1996. ‘Woman’s Theatre-United Nations Conference on
Women, Beijing 1995-Commentary.
677Van Bueren, Geraldine 1994. The international legal protection of children in armed conflicts. 678 Ibid.
of 1968 on Respect for Human Rights in Armed Conflicts,680 and Resolution 2675
(XXV) of 1970,681 both basically focus on the protection of civilian populations in
armed conflict and respect for their basic rights.682
Other resolutions proposed were Resolution 48/104 of 20 December 1993, with regard to security, liberty, dignity, integrity, and equality of both men and women.683 This resolution reinforces the works of the Convention on the
Elimination of All Forms of Discrimination against Women.684 On the plus side,
the resolution offered a wide definition for violence against women (VAW685) to
be:
‘Any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of acts such as, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.’
These acts include battering, marital rape, sexual abuse of girls, female genital mutilation, non-spousal violence, violence related to exploitation and sexual abuse.686 Reilly Niamh, a supporter of women’s human rights, advocates that
progress made by the Declaration was susceptible to the rise of more conservative forces.687 She emphasises this by highlighting the situation that
680Solf, Waldemar A 1986. Protection of Civilians against the Effects of Hostilities under
Customary International Law and Under Protocol I.
681 Schindler, Dietrich 1988. The Laws of Armed Conflicts: A Collection of Conventions,
Resolutions, and Other Documents.
682 UN Security Council Resolution. “A/RES/48/104 - Declaration on the Elimination of Violence
against Women - UN Documents: Gathering a body of global agreements.”
683 Ibid.
684Barreiro-Bobadilla, Olinda 2010. Convention on the Elimination of All Forms of Discrimination
against Women (CEDAW), adopted in 1979 by the UN General Assembly.
685UNECE Gender Statistics - About Violence against Women.” United Nations Department of
Economic and Social Affairs, 2015.
686 United Nations, 20 December 1993 Declaration on the Elimination of Violence against
Women.
687Reilly, Niamh. “Violence against Women.” Feminist Review. March 2011, Volume 97, Issue 1,
occurred during the UN Commission on the Status of Women in 2003. Here delegates from Iran, Egypt, Pakistan, Sudan, and the US challenged the inclusion of a paragraph that called on governments to condemn violence against women.688 These delegates prevented the commission from invoking any custom
or religious consideration to avoid their obligations, as a result making it the first ever diplomatic failure of the UN Commission on the Status of Women.689