Article 7 (1) (g)-6 Crime against humanity of sexual violence

Elements
1. The perpetrator committed an act of a sexual nature against one or more persons or
caused such person or persons to engage in an act of a sexual nature 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 persons or another
person, or by taking advantage of a coercive environment or such persons or persons
incapacity to give genuine consent.

2. Such conduct was of a gravity comparable to the other offences in article 7, paragraph 1 (g),
of the Statute.
3. The perpetrator was aware of the factual circumstances that established the gravity of the
conduct.
4. The conduct was committed as part of a widespread or systematic attack directed against a
civilian population.
5. The perpetrator knew that the conduct was part of or intended the conduct to be part of a
widespread or systematic attack directed against a civilian population.

Article 7(1)(g)-6
[57]

or

any

other

form

of

sexual

violence

of

comparable

gravity;

The provision has a catch-all character and requires that the conduct is comparable in gravity to the other
acts listed in article 7(1)(g). It concerns acts of a sexual nature against a person through the use of force or
threat of force or coercion. The importance of distinguishing the different forms of sexual violence primarily
lies in the level of harm to which the victim is subjected and the degree of severity, and therefore becomes a
matter

of

sentencing.

It is generally held to include forced nudity, forced masturbation or forced touching of the body. The ICTR
in Akayesu held that sexual violence is not limited to physical invasion of the human body and may include
acts which do not involve penetration or even physical contact. See Prosecutor v Akayesu, ICTR-96-4-T, 2
September 1998, para. 688. The Trial Chamber in the case confirmed that forced public nudity was an
example of sexual violence within its jurisdiction. See para. 10 A. Similarly, the Trial Chamber of the ICTY in
its Kvocka decision declared: sexual violence is broader than rape and includes such crimes as sexual
slavery or molestation, and also covers sexual acts that do not involve physical contact, such as forced
public nudity. See Prosecutor v Kvocka, 2 November 2001, ICTY, Case No. IT-98-30/1-T, para. 180. To the
contrary, in the decision on the Prosecutors application for a warrant of arrest in the Bemba case, the PreTrial Chamber of the ICC did not include a charge of sexual violence as a crime against humanity in the
arrest warrant, which had been based on allegations that the troops in question had forced women to
undress in public in order to humiliate them, stating that the facts submitted by the Prosecutor do not
constitute other forms of sexual violence of comparable gravity to the other forms of sexual violence set
forth in Article 7(1)(g), Prosecutor v Bemba, Decision on the Prosecutors Application for a Warrant of Arrest
against

Jean-Pierre

Bemba

Gombo,

ICC-01/05-01/08,

10

June

2008,

para.

40.

In the Lubanga case of the ICC, evidence of sexual violence was presented during the trial, including
various forms of sexual abuse of girl soldiers who were forcefully conscripted. However, no charges of sexual
violence were brought. The Prosecution rather encouraged the Trial Chamber to consider evidence of sexual
violence as an integral element of the recruitment and use of child soldiers, see Prosecutor v Lubanga,
Prosecution's closing brief, ICC-01/04-01/06-2748-Red, 1 June 2011, paras. 139, 142 and 205. In the
confirmation of charges in the Muthaura and Kenyatta case, Pre-Trial Chamber II chose not to charge forced
male circumcision and penile amputation as sexual violence, but rather as inhumane acts. The Chamber held
that the evidence placed before it does not establish the sexual nature of the acts of forcible circumcision
and penile amputation. Instead, it appears from the evidence that the acts were motivated by ethnic
prejudice, Prosecutor v Muthaura and Kenyatta, Decision on the Confinnation of Charges Pursuant to
Article 61(7)(a) and (b) of the Rome Statute, ICC-01/09-02/11-382-Red, 23 January 2012, para. 266. It
argued that not every act of violence which targets parts of the body commonly associated with sexuality
should

be

considered

an

act

of

sexual

violence.

See

para.

265.

Crossreference:
Articles 8(2)(b)(xxii) and 8(2)(e)(vi)
Doctrine:
1.

Macheld

2.

Gerhard

Boot

at
Werle

pp.

144-145,
at

MN
pp.

53
252-253,

in

Otto
MN

Triffterer.
734

3. R. Cryer et al, An Introduction to International Criminal Law and Procedure, 2nd ed., 2010, Cambridge, p.
258-259
4. Anne-Marie L.M. de Brouwer, Supranational Criminal Prosecution of Sexual Violence, Intersentia, 2005,
pp.

147-152.

Author:
Maria Sjholm