Developments in international human rights law and international criminal law have replaced outdated ideas about rape, strengthening understandings of sexual violence and the realities of its use as a weapon of war.

International tribunals have recently considered acts of rape and serious sexual assault as torture, genocide, crimes against humanity and war crimes. Additionally, a much wider scope of acts have been recognised as constituting sexual violence - an act of oral penetration, and a slight penetration of any part of the body with a sexual organ, object or other body part, can constitute rape in international law¹.

On the eve of the first hearing in the International Criminal Court (ICC) on whether to confirm charges of rape as a crime against humanity and as a war crime, Amnesty International welcomes the opportunity for the ICC to adopt a strong definition of the brutality of rape, to ensure future prosecutions of a crime which pervades many current conflicts.

The History of Violence

As a court of last resort, the ICC independently investigates, prosecutes and tries persons accused of the most serious crimes of international concern. From 12 to 15 January 2009, evidence was presented to the Pre-Trial Chamber III in the case of Jean-Pierre Bemba Gombo (see ICC factsheet).

Following an attempted overthrow of the government by the armed forces in 2001, President Patasse of the Central African Republic sought military assistance from the armed political group Mouvement de libération du Congo (MLC). As Commander in Chief of the MLC, Bemba Gombo allegedly led systematic and widespread acts of rape and sexual violence against the civilian population of the CAR, many of whom belonged to the same ethnic group as the leader of the attempted coup. The acts of rape were condoned by government forces, intended to punish women for alleged assistance to the mutinous army, and aimed at humiliating the men and demonstrating their powerlessness to protect the vulnerable women and families.

According to human rights and humanitarian organisations, victims/survivors were aged between six and 60 years old, with hundreds of cases of rape-related injuries, infections of STDs and AIDS, unwanted pregnancies, and some deaths, amidst the trauma of community rejection and shame for the victims/survivors, their spouses and members of their immediate family.

The Chamber now has up to 60 days to determine whether the evidence is sufficient to commit Bemba Gombo to trial for charges of crimes against humanity and war crimes committed between 25 October 2001 and 15 March 2003.

Facing the Facts

The ICC's first prosecution of rape would be indicative of the international political will to prosecute such crimes, as well as an opportunity to develop the law by implementing a stronger, more comprehensive definition of rape crimes. The definition in the Elements of Crime would assist the court when interpreting and applying the charges against Jean-Pierre Bemba Gombo. Amnesty International firmly believes this definition should be endorsed by the Pre-Trial Chamber, in that it accurately reflects the current documented evidence by human rights advocates of the situations in which much sexual violence takes place.

The definition reflects the brutality of rape, which is frequently perpetrated with sticks, guns, bottles or other objects to injure victims/survivors, and is gender-neutral, recognising that men and women alike are raped in situations of conflict.

Of particular significance is an understanding that physical force alone is not the only method of securing control of a person in order to commit rape and other forms of sexual violence. The Elements of Crime definition recognises that the crime is frequently committed, not only by force, but also by threat of force or other coercion,

"such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person of another person, or by taking advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine consent."

Within the rules of the ICC, there is scope to further integrate human rights law into its determinations, to ensure a deeper and more accurate definition of the crime of rape that avoids any distinction based on gender, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status.

Amnesty International welcomes the recent appointment of a Special Adviser to the Prosecutor on Gender Crimes - a strong new development towards staffing the ICC with professionals able to develop and implement justice for survivors of rape.

Redressing violations on a national scale

International law requires states to address persistent violations of human rights and take measures to prevent their occurrence. It is hoped that the ICC's use of human rights principles in its prosecution will encourage change in domestic criminal law systems to guarantee justice for victims of crimes of sexual violence.

As documented by Amnesty International in its report CAR: Five months of war against women, sexual violence is a result of a combination of male domination, cultural practices and the failure of state institutions to protect and promote women's rights. It is critical that the stigma to which rape victims are subjected is lifted through education and awareness-raising, as well as prosecution of perpetrators. Conflict-related sexual violence must be condemned in the strongest terms possible.

  1. Obtained from International Criminal Court: Clarifying the scope of the crime of rape, Amnesty International Media Briefing (AI Index: IOR 53/001/2009).