Universal-Womens-accesss-to-justice-Publications-Practitioners-Guide-Series-2016-ENG

V
WOMEN’S ACCESS TO JUSTICE FOR GENDER-BASED VIOLENCE 199
“[Any] rigid approach to the prosecution of sexual
offences, such as requiring proof of physical resistance
in all circumstances, risks leaving certain types of rape
unpunished and thus jeopardising the effective
protection of the individual's sexual autonomy. In
accordance with contemporary standards and trends in
that area, the member States' positive obligations under
Articles 3 and 8 of the Convention must be seen as
requiring the penalisation and effective prosecution of
any non-consensual sexual act, including in the absence
of physical resistance by the victim.” 528
Committing rape through coercion and threat
Sexual acts performed via coercion and the threat of violence,
without the actual use of physical violence, can amount to the
crime of rape. In this regard, ensuring justice for women who
have been subjected to rape in situations of armed conflict led
to a profound practical examination of the conditions under
which rape is perpetrated. Following the widespread use of
rape and sexual violence against women in armed conflict in
Rwanda and the former Yugoslavia in the 1990s, a number of
women’s rights advocates worked to ensure that rape could be
prosecuted in the ad hoc international criminal tribunals as war
crimes and crimes against humanity, in procedures that were
fair to women who were victims and witnesses, avoiding the
stereotyping and secondary victimization in criminal trials at
the domestic level. Developments in gender-competent
procedures and jurisprudence in the ad hoc criminal tribunals
for the former Yugoslavia and Rwanda were affirmed and
developed further in the negotiation of the Rome Statute of the
International Criminal Court, its Elements of Crimes and its
Rules of Procedure and Evidence.
Because of the constant threat of violence in situations of
armed conflict, the International Criminal Tribunal for Rwanda
(ICTR) in the Akayesu case defined rape as “a physical invasion
of a sexual nature, committed on a person under circumstances
528
M.C. v Bulgaria (2003) ECHR 651, paragraphs 164-166.