An Introduction To The International Criminal Court - Institute for ...

48 introduction to the international criminal court
circumstances which are coercive’. 83 The definition was broad enough to
encompass forced penetration by the tongue of the victim’s mouth, which
most legal systems would not stigmatise as a rape, although it might well be
prosecuted as a form of sexual assault. Subsequently, a Trial Chamber of the
Yugoslav Tribunal reverted to a more mechanical and technical definition,
holding rape to be ‘the sexual penetration, however slight: (a) of the vagina
or anus of the victim by the penis of the perpetrator or any other object
used by the perpetrator; or (b) of the mouth of the victim by the penis of
the perpetrator’. 84 The Elements of Crimes lean towards the second of these
approaches, but with some slight divergences: ‘The perpetrator invaded 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.’ Many legal systems consider that only a woman may be
a victim of rape. The Elements of Crimes provide a signal that men may
also be victims of the crime in a footnote indicating that ‘[t]he concept of
“invasion” is intended to be broad enough to be gender-neutral’. 85
Although Article 7 expands the scope of crimes against humanity, in some
respects it may also limit it. For example, the Statute defines persecution as
a punishable act: ‘Persecution against any identifiable group or collectivity
on political, racial, national, ethnic, cultural, religious, gender as defined
in paragraph 3, or other grounds that are universally recognized as impermissible
under international law, in connection with any act referred to in
this paragraph or any crime within the jurisdiction of the Court.’ The list of
groups or collectivities is considerably larger than any previous definitions.
However, the words ‘in connection with any act referred to in this paragraph
or any crime within the jurisdiction of the Court’ narrows its scope considerably
and is a departure from previous definitions. Defining ‘persecution’
perplexed the Rome drafters, with many judging it to be ambiguous and
vague. The result is a compromise. The Elements of Crimes explain that,
in the act of persecution, the perpetrator ‘severely deprived, contrary to
international law, one or more persons of fundamental rights’. 86 Arecent
judgment of the International Criminal Tribunal for the Former Yugoslavia
holds that the crime against humanity of persecution ‘derives its unique
83 Ibid., para. 326. See also Prosecutor v. Delalic et al. (Case No. IT-96-21-T), Judgment,
16 November 1998, paras. 477–8.
84 Prosecutor v. Furundzija (Case No. IT-95-17/1-T), Judgment, 10 December 1998, para. 185.
85 Elements of Crimes, Art. 7(1)(e), para. 1 and n. 15.
86 Elements of Crimes, Art. 7(1)(h), para. 1.