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200 PRACTITIONERS GUIDE No. 12
which are coercive”: the definition did not make it necessary
for a rapist to use force. 529 Building on this, when the Rome
Statute of the International Criminal Court was elaborated in
1998, the Elements of Crimes in the Statute recognized that
rape is present where the perpetrator uses “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 another person, or by taking advantage
of a coercive environment, or the invasion was committed
against a person incapable of giving genuine consent”. 530
Rule 70 of the Rules of Procedure and Evidence of the
International Criminal Court recognized that a main point of
inquiry for the Court in rape trials is whether a perpetrator
used “force, threat of force, coercion” or was “taking advantage
529
Prosecutor v Akayesu, Case No ICTR-96-4, Trial Judgment 2
September 1998, paragraph 596-598.
530
The non-contextual elements of the definition of rape as a crime
against humanity and a war crime in the Elements of Crimes are the
same. The only differences in the elements of these two crimes are
the legal contextual ones distinguishing rape as a crime against
humanity from rape as a war crime. The common elements are: 1)
The perpetrator invaded [A footnote here reads: ‘The concept of
“invasion” is intended to be broad enough to be gender-neutral’] the
body of a person by conduct resulting in penetration, however slight,
of any part of the body of the victim or of the perpetrator with a
sexual organ, or of the anal or genital opening of the victim with any
object or any other part of the body. 2) The invasion was committed
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 another person, or by taking advantage
of a coercive environment, or the invasion was committed against a
person incapable of giving genuine consent. [A footnote here reads: ‘It
is understood that a person may be incapable of giving genuine
consent if affected by natural, induced or age-related incapacity’]. See
International Criminal Court, “Elements of Crimes” (2011), Elements 1
and 2 of the Elements of Crimes relating to the crime against
humanity of rape under Article 7(1)(g)-1 (page 8) and the war crime
of rape in international and non-international armed conflicts under
Article 8(2)(b)(xxii)-1 (page 28) and Article 8(2)(e)(vi)-1 (pages 36-
37).