Calling it what it is: It is time to define “sexual violence”

From 5-12 December 2018, International Criminal Court (ICC) member states are convening at the World Forum Convention Center in The Hague for the 17th annual session of the Assembly of State Parties (ASP) to the Rome Statute. Serving as the governing body of the Court, the ASP meets in full plenary once a year to discuss and decide upon matters key to the future functioning of the ICC. Civil society is there every step of the way, monitoring sessions and interacting with delegates, in order to advocate for an independent, effective and fair ICC.

The issue of gender justice, and more specifically of sexual and gender-based violence (SGBV), takes relevance in the side meetings. In this regard, one of the most anticipated events took place on December 10, 2018, titled “What makes violence ‘sexual?’,” including the launch of the “Call it what it is” campaign and the “Gender Report Card” on the ICC 2018. The event was organized by the Women’s Initiatives for Gender Justice with the support of the governments of Australia, Korea, Switzerland, Argentina, Canada, United Kingdom, Costa Rica, Sweden, Switzerland, and New Zealand.

Side-event “What makes violence ‘sexual’,” including the launch of the “Call it what it is” campaign and the “Gender Report Card” on the ICC 2018 @HandlMelisa, the Canadian Partnership for International Justice

The panel was moderated by Siobhan Hobbs, Legal and Program Director Women’s Initiatives for Gender Justice. The opening remarks were made by H.E. Matthew E.K. Neuhaus, Australian Ambassador to the Netherlands, who briefly talked about the challenge of dealing with the impunity of sexual crimes in conflict situations. Peter Wilson, British Ambassador to the Netherlands, also joined the opening remarks.

The side-event featured three speakers: Patricia Sellers, Special Adviser on Gender to the ICC Prosecutor; Dr. Rosemary Grey, Postdoctoral Fellow from Sydney University and author of academic analyses on SGBV; and Jihyun Park, survivor of gender-based violence and women’s rights activist from North Korea. H.E Sergio Gerardo Ugalde Godinez, Costa Rican Ambassador to the Netherlands, presented the closing remarks.

Patricia Sellers explained the genesis of how we came to conceptualize sexual violence in international criminal law, how it is addressed today, and how we want to address it in the future. She concluded by explaining that history shows us that sexual violence is something that can destroy towns, nations, communities, and can be used as means of genocide to destroy groups. Dr. Rosemary Grey stated that the ICC was the first tribunal with a statute recognizing a wide range of SGBV. However, she emphasized that the statute does not clarify the question of what makes an act sexual by nature and that, in the jurisprudence, there is no answer to what makes an act “sexual.” Dr. Grey explained that, in the Bemba case, the prosecutor alleged sexual violence was committed as Bemba’s soldiers subjected men and women to forced nudity in order to humiliate them. However, the Pre-Trial Chamber did not include those acts of forced nudity as “sexual violence” as it did not regard them to be of “comparable gravity.” In the Kenyatta case, perpetrators forced a group of people to remove their clothes and circumcised the men using rough tools and, in some cases, amputated the victims’ genitals. The Prosecutor described these acts as “other forms of sexual violence.” The victims agreed. However, the Pre-Trial Chamber characterized forcible circumcision and penile amputation as “other inhumane acts” under Article 7 (1) (k) of the Statute because it did not regard them as “sexual in nature.”

From left to right, Dr.Rosemary Grey, Patricia Sellers, Siobhan Hobbs and Jihyun Park. @HandlMelisa,Canadian Partnership for International Justice

The side event also included the launch of the campaign “Call it what is!” with remarks by H.E. Sabine Nolke, Canadian Ambassador to the Netherlands. The “Call it what it is!”campaign addresses the issue of lack of accountability for sexual violence. It is a civil society campaign that aims to think about options that otherwise we would have not have been contemplated in the definition for sexual violence, expanding our understanding of sexual violence around the world in a way that is inclusive, culturally sensitive, responds to the realities around the world, and is forward-thinking. The campaign would support the Court in considering how sexual violence is understood in different cultures by “creating a vocabulary so the ICC can speak in an inclusive language.” It aims to do so by creating a definition of sexual violence in order to serve as guide for prosecutors, victims’ representatives, defense counsel, and other judicial actors to better understand what an “act of sexual nature” involves. The campaign also included the launch of a survey (available in English, French and Spanish) that mapped different cultural perceptions on sexual violence available at the Women’s Initiative for Gender Justice webpage.

The Rome Statute is the first instrument of international criminal law to expressly include a wide range of crimes of sexual violence. However, jurisprudence of the ICC highlights the need for a working definition of what sexual violence could entail. Specifically, the ICC legal framework lacks a definition of “act of a sexual nature” (found in the ICC Elements of Crimes for sexual slavery, forced prostitution, and “other forms of sexual violence”).

Women’s Rights Activist Jihyun Park, sharing her experience as a sexual violence and forced marriage survivor in North Korea @HandlMelisa, Canadian Partnership for International Justice

One of the questions asked in the survey is what makes an act “sexual.” There are several characteristics that could help define and conceptualize a “sexual” act; it could be that the act involves contact or exposure with sexual body parts; that the act affects the victims’ sense of sexual identity; that the act affects the victims’ reproductive capacity; that the act is widely regarded as “sexual” in the victims’ community; that the act results in sexual gratification of the perpetrator; or/and that the act affects the victims’ capacity for sexual activity. The survey also asks participants to provide examples of an “act of sexual nature” — other than those listed in the Rome Statute — that could amount to sexual violence. Examples of such acts could include forced nudity, forced abortion, and genital mutilation, among many other. Finally, the survey asked participants to contextualize by explaining in which country, region, culture, or religion this“act” may be considered as an “act of sexual nature.”

As of this morning, there were more than one hundred responses from diverse geographical regions that will inform a civil society effort to develop a declaration on sexual violence, probably a non-exhaustive list.

Dr. Rosemary Grey explained how initial responses to the survey showed the range of thinking in this topic, including many acts such as forced nudity, sexual mutilation, forcing victims to watch an act of sexual violence, and forcing victims to rape others. One response that appeared many times is the “non-consensual circulation of sexual images” in media. Other examples also included forced virginity testing in order to check the condition of the hymen, groping, total abortion bans, forced abortion, and denial of contraception methods, among others. Some responses also referred to historical precedents: human experiments of a sexual nature, such as Nazi experiments on homosexual men and practices in concentration camps whereby homosexual men were not allowed to put their hands under their blankets under the presumption that they would otherwise masturbate, “weaponizing the victims’ sexuality against them.” Shaving the heads of women who have had sexual connection with the enemy as a way to humiliate them, unwanted or forced touching of body parts, violating a victim’s sexual privacy, and violations affecting reproductive rights and reproductive autonomy, were also among the sexually violent acts mentioned in some of the responses to the survey.

The expressive harm of denying diverse sexual-based crimes their recognition as related but distinct crimes is silencing the wide-ranging spectrum of gender-related harms that victims often experience.Victims of gender-based crimes not only experience forced penetration. There are gender-based harms that are equally or even more physically, psychologically, socially and emotionally harming than rape. Crimes such as enforced prostitution, sexual slavery, forced abortion, the transmission of sexual diseases, and forced pregnancy often provoke irreversible internal organ damage, psychologically traumatize the victims for the rest of their lives, subsume them in shame and guilt, and socially stigmatize them within their communities.

The ICC – a role model organization with a clear gender-sensitive mandate – has the capability to establish a gender perspective that can guarantee the effective investigation, prosecution and trial of gender-based crimes. No other institution in the world has such a significant power to contribute to ending the era of impunity for gender-based crimes.

This blogpost and my attendance to the 17th Assembly of States Parties are supported by the Canadian Partnership for International Justice and the Social Sciences and Humanities Research Council of Canada.

We have come a long way, but we still have a long way to go: The Struggle for the Recognition of Gender-Based Crimes

Gender-based crimes have been committed for as long as records exist, but unfortunately they still remain under-prosecuted. On June 8, 2018, the International Criminal Court (ICC) acquitted former Congolese Vice-President Jean-Pierre Bemba, convicted at trial for war crimes, stating that he could not be held criminally responsible for actions committed by his troops in the Central African Republic. The Bemba conviction was the ICC’s first and only conviction for sexual violence as a weapon of war in its history. ICC Chief Prosecutor Fatou Bensouda stated that the acquittal was “regrettable and troubling,” but highlighted that the judges still recognized the suffering caused by the atrocities committed by Bemba’s soldiers. Impunity for sexual crimes as a weapon of war is still today a serious problem, and prior to this acquittal, the Bemba case had been a milestone judgment for gender justice in international criminal law.

Until not long ago, gender-based crimes have been perceived to be a collateral damage of conflict. In international criminal law,gender-based crimes focus mainly on sexual violence against women, which – as Catherine McKinnon points out – is a product of gender inequalities and patriarchal structures.[1] Women’s bodies have been considered as instruments for the use of soldiers to de-stress after battle and satisfy their “manly” necessities. Recent conflicts have shown that gender-based crimes can also be committed purposefully. In conflicts such as Kosovo, Rwanda, the Central African Republic (CAR) and the Democratic Republic of Congo (DCR), rape became a weapon of war and terror as part of the political and military goals of the belligerent groups.[2]During the conflict in Kosovo, Serbian forces targeted ethnic Albanian women as a means of carrying out ethnic cleansing by systematically raping them. In the CAR, the population was terrorized and forced to support the government by the Mouvement de Libération du Congo (MLC) using rape as a weapon of war. Crimes of sexual violence have also become a weapon of war in the DRC since 2002.

Jean-Pierre Bemba Gombo (Reuters)

In order to show how gender-crimes have evolved through time, it is useful to distinguish three eras, each of them highlighting a particular evolution of gender-based crimes: (a) the “honour crimes era”; (b) the “International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) era”; and (c) the “ICC era”.

The “Honour Crimes Era”

During the “honour crimes era”, international treaties and international customary law did not overtly prohibit gender-based crimes as war crimes, crimes against humanity or genocide.[3] International humanitarian law subsumed gender-based crimes under the label “crimes against honour”. In the 1949 Geneva Conventions – the pillars of the current International Humanitarian Law – gender-based crimes are implicitly prohibited under the category of “attacks against the honour of women” or “outrages upon human dignity.”[4] These provisions are highly problematic, because (a) they focus on honour and/or dignity, but not on the physical, mental, social and cultural suffering that victims of gender-based crimes experience; (b) they assume that victims are always going to be women, giving no place for the commission of gender-crimes against men; (c) they are based on outdated and discriminatory ideas of honour as chastity and virtue, perpetuating gender stereotypes by emphasizing expectations about male and female roles and their correct behavior; and (d) the category of “honour crimes” diminishes the seriousness of gender-based crimes because it subsumes victims in shame and social stigma,making them less likely to report such crimes, which in turn, reduces the number of investigations and prosecutions of gender crimes.[5]

The “ICTY and ICTR Era”

ICTY Headquarters in The Hague, available at <;

The International Criminal Tribunal for the former (ICTY), the International Criminal Tribunal for Rwanda (ICTR) and the Special Court for Sierra Leone (SCSL) stepped away from the conception of gender-crimes as crimes against honour, towards a conception of gender-based crimes as sexual violence crimes.[6] The case law of the aforementioned international tribunals has greatly contributed to the criminalization of gender-based crimes in international law, even when they focused almost exclusively on sexual violence crimes rather than the broader category of gender-based crimes. In the famous Akayesu case, the ICTR stated that sexual violence can be used as an instrument to commit genocide. [7] The ICTY in the Kunarac case also framed gender-based crimes as crimes of sexual violence, explicitly stating that rape could be a crime against humanity and a war crime.[8] Moreover, Akayesu introduced a broad and novel definition of rape which refocused the elements of crime away from penetration; the Trial Chamber defined rape as “a physical invasion of a sexual nature, committed on a person under circumstances which are coercive”. [9]The SCSL reached another milestone decision by prosecuting and distinguishing for the first time the crimes of sexual slavery and forced marriage.[10]

The “ICC Era”

ICC Headquarters in The Hague, available at <;

The progressive criminalization of gender-based crimes has culminated in the inclusion of a gender mandate within the Rome Statute, the first international criminal law treaty to have explicitly included gender crimes in groundbreaking and progressive ways, but not without complications. The Statute defines gender as “the two sexes, male and female, within the context of society.”[11] This definition has been criticized for being circular and for referring to the concept of “sex” rather than the concept of “gender.” As Valerie Oosterveld points out, this formulation was the result of the negotiators resorting to “constructive ambiguity” in order to reconcile different points of view, which leaves the interpretation to the Prosecutor and ICC.[12]

According to Oosterveld, while the definition is intentionally opaque it is not necessarily restrictive as it can cover a wide range of violations based both on gender and on sex. This is recognized in the Office of the Prosecutor’s 2014 Policy Paper on Sexual and Gender-Based Crimes. That policy recognizes that gender-based crimes “are those committed against persons, whether male or female, because of their sex and/or socially constructed gender roles. Gender-based crimes are not always manifested as a form of sexual violence. They may include non-sexual attacks on women and girls, and men and boys, because of their gender.”

Most importantly, the Rome Statute is often praised for being the first international treaty to codify a progressive list of gender-based crimes. The Rome Statute incorporated the gender-based crimes of rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization or any other form of sexual violence as war crimes, crimes against humanity and genocide.[13] Persecution on the basis of gender and trafficking in women and children as enslavement are both incorporated as crimes against humanity.[14] The Rome Statute undoubtedly incorporated gender crimes in progressive and admirable ways. However, those groundbreaking provisions have so far failed to translate into practice. The prosecution and sentencing of gender based crimes will be the measure of real success for gender equality and the end of gender-crimes impunity.

This blogpost and my attendance to the 17th Assembly of States Parties are supported by the Canadian Partnership for International Justice and the Social Sciences and Humanities Research Council of Canada.

[1] Catherine A. McKinnon, “Reflections on Sex Equality Under Law” (1990) 100 Yale Law Journal1281 at page 1302.

[2] Kelly D. Askin, “Prosecuting Wartime Rape and Other Gender-Related Crimes under International Law: Extraordinary Advances, Enduring Obstacles” (2003) 21 Berkeley J.I.L. at page 298.

[3] Fionnuala Ní Aoláin, “Criminal Justice for Gendered Violence and Beyond” (2011) 11 International Criminal Law Review 425 at pages 426-427.

[4] Article 27 of the 4th.Geneva Convention relative to the Protection of Civilian Persons, 1949; Article 76 (1) of the Additional Protocol I, 1977, Article 4 (2) of the Additional Protocol II, 1977. Common Article 3 to the Four Geneva Conventions, 1949.

[5] Janet Halley, “Rape at Rome:Feminist Interventions in the Criminalization of Sex-related Violence in Positive International Criminal Law” (2008) 30 Mich. Journal Int’l Law 3 at page 8.

[6] Solange Mouthaan, “The Prosecution of Gender-based Crimes at the ICC: Challenges and Opportunities” (2011) 11 International Criminal Law Review 775 at page 779.

[7] The Prosecutor v. Jean-Paul Akayesu, ICTR-96-4-A,  ICTR, 1 June 2001.

Available at <;; Sherrie L. Russell-Brown, “Rape as an Act of Genocide” (2003) 21 Berkeley J. Int’ L.350 at pages 371-372.

[8] Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic (Trial Judgment), IT-96-23-T & IT-96-23/1-T, ICTY 22 February 2001. Available at < paras 596-598>.

[9] Prosecutor v. Akeyesu at para. 688.

[10] Article 2 (g), Statute of the Special Court for Sierra Leone (2002). Available at <>

[11] Article 7 (3), Rome Statute of the International Criminal Court (1998) Doc., A/CONF.183/9 entered into force 1 July 2002.

[12] Valerie Oosterveld, “The Definition of ‘Gender’ in the Rome Statute of the International Criminal Court: A Step Forward or Back for International Criminal Justice” (2005) 18 Harvard Human Rights Journal 54-84 at page 54.

[13] Rome Statute at Article 7(1)(g).

[14] Rome Statute Articles 7 (1) (h) & 7 (2) (g) and 7 (3); Article (71) (h) of the ICC Statute’s Elements of Crime, ICC-ASP/1/3 (part II-B), entered into force 9 September 2002.