As a starting point, it seems interesting to note the differences in terminology adopted in the ICTY and ICTR statutes, the ICC and the statute establishing the SCSL. The ICC and the SCSL statutes use the term ‘any other form of sexual violence’, while the ICTY and ICTR statutes use the term ‘other inhumane acts’.
The EoC attached to the ICC statute describes this section to contain the following elements:
“1. The perpetrator committed an act of a sexual nature against one or more persons or cause such person or persons to engage in an act of a sexual nature 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 persons or another person, or by taking advantage of a coercive environment or such person’s or persons’ incapacity to give genuine consent.
2. Such conduct was of a gravity comparable to the other offences in article 7, paragraph 1(g), of the Statute.
3. The perpetrator was aware of the factual circumstances that established the gravity of the conduct.
4. The conduct was committed as part of a widespread or systematic attack directed against a civilian population.
5. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.”
83
This being in conformity with article 30 of the ICC statute.
The first element requires that the act be of a sexual nature, while the second element requires that it be comparable to the other acts of sexual violence listed in the definition of crimes against humanity. De Brouwer argues that this seems to imply that the act should involve some form of penetration.84 She further reminds us that the statutes establishing the ICTY and the ICTR only require that the act be ‘inhumane’ and therefore these criminal tribunals could have convicted accused persons like Akayesu for forcing a Tutsi victim to undress in public and Tadic for sexual mutilation.85 These acts that Akayesu and Tadic were convicted of did not involve sexual penetration.
Unfortunately I have to disagree with De Brouwer, as crimes involving sexual slavery and enforced sterilization do not necessarily involve penetration. The former act punishes the person who deprived the liberty of a victim for sexual purposes.86 The perpetrator in this instance can be convicted of sexual slavery for depriving the victim of her liberty and sexual autonomy, even though he himself did not sexually penetrate the victim. As for enforced sterilization, the perpetrator can perform a medical procedure on the victim, for the reasons which are not medically required while the victim is coerced into it. This act also does not necessarily infer that sexual penetration takes place. I also disagree with De Brouwer when she argues that the nullum crimen sine lege principle as expressed in this article restricts the crime of sexual violence too much.87
84
See AMLM De Brouwer op cit note 17 at 148. 85
See AMLM De Brouwer op cit note 17 at 149. 86
My emphasis added. 87
See AMLM De Brouwer op cit note 17 at 150.
In her dissenting opinion in the AFRC judgment, Justice Doherty dismissed the majority argument about not convicting the accused for sexual slavery. She argues that even though the accused persons’ actions might not have constituted sexual slavery, it did amount to forced marriages, which caused serious mental and physical harm to the victim.88 The fact that forced marriages caused serious mental and physical harm to the victim is a strong enough argument to interpret it as ‘other inhumane acts’.89 The fundamental reason why sexual slavery cannot be considered as forced marriages is because the EoC for sexual slavery does not make provision for the perpetrator to take ownership of the victim by way of (putative) marriage.90 Forced marriages cannot also amount to enforced prostitution as the perpetrator does not receive some form of remuneration or benefit from a third person for sexual services by the victim. Based on the fact that in most forced marriages the victim is required to provide services of a sexual nature to the accused (which does not necessarily mean sexual penetration and therefore also does not fall under EoC for rape), it can thus be correctly argued that forced marriages can amount to ‘any other form of sexual violence of comparable gravity’. This act would thus amount to an act of a sexual nature; of comparable gravity to the other acts mentioned in article 7(1)(g) of the ICC statute where the perpetrator was aware of the
88
Para. 57 of Justice Doherty’s dissenting opinion. 89
Para. 51 of Justice Doherty’s dissenting opinion. 90
I thus agree with Jain who argues that the distinguishing characteristic of forced marriages is the imposition of a marital status on one or both parties, against their will, or in circumstances that vitiate their consent, resulting in the involuntary assumption of obligations arising from a marriage-like relationship, as the concomitant physical and psychological suffering caused to the victim of the marriage. She states that sexual slavery may be present in these circumstances, but it is not the dominant feature. See Neha Jain ‘Forced Marriages as a Crime against Humanity: Problems of Definition and Prosecution’ (2008) 6 Journal
of International Criminal Justice 1030.
gravity of his conduct. This therefore negates the nullum crimen sine lege principle. Thus it meets all the necessary elements as listed in the EoC.91