Interpretation of crime of 'men rape' under international criminal justice
| Autor | Dimitris Liakopoulos |
| Páginas | 13-39 |
REVISTA ACADÊMICA
Faculdade de Direito do Recife
Vol.91 N.01 - Anno CX XVIII
LIAKOPOULOS, Dimitri. INTERPRETATION OF CRIME OF “MEN RAPE” UNDER INTERNATIONAL CRIMINAL JUSTICE.
Revista Acadêmica da Faculdade de Direito do Recife - ISSN: 2448-2307, v. 91, n.1, p.58-84, ago. 2020. ISSN 2448-2307.
<Disponível em: https://periodicos.ufpe.br/revistas/ACADEMICA/article/view/239140 >
13
Interpretation of crime of “men rape” under international criminal justice
Dimitris Liakopoulos
SUMMARY: -1.Introduction; -2.Seeking the definition of rape in international jurisprudence
through the elements of the objective and subjective existence of the offense; -3.Definition of
rape at the Special Court for Sierra Leone; -4.Definition of rape by ICC; -5.Concluding remarks.
ABSTRACT: The present work has attempted to analyze sexual crimes and especially the crime
of male rape. The international jurisprudence of international criminal Tribunals and the
International Criminal Court has tried to qualify rape either as a crime of genocide in the form of
serious bodily and physical injuries, even if not necessarily permanent (lett. b) art. 6 of the Rome
Statute; or as a crime against humanity where there are elements of context and above all
material elements that emerge from the definitions given by the ad hoc Tribunals and the
elements of crimes; or even as a war crime in case it is implemented as a part of a political plan
or design, or as part of series of similar crimes committed on a large scale. This behavior is
rebuilt in a residual way compared to that of sexual violence, according to a gender specific
relationship to speciem. The indication of the level of gravity of the crime is necessary for the
relevance of sexual violence and rape as crimes against humanity that we will see in the next
years from the panorama of international criminal law.
Key words: international crimes, crimes against humanity, crime of rape, ICC, SCSR,
international criminal justice
1. Introduction
The latest military developments/actions in Syria (April 2018) remind us once again the “huge
volume of overwhelming testimonies”, pictures and videos that document the so-called report:
“implementation of the Resolution establishing the international, impartial and independent
mechanism to assist in the investigation and prosecution of persons responsible for the most
serious crimes under international law committed in the Syrain Arab Republic since March
2011”
1
, led by the French court judge K. Marchi-Uhel, who has conducted preliminary
investigations into a number of cases and cooperated with court judges that investigate war
1
GA, 71th of 16 August 2017, A/71/75conflict5/Add.1.
REVISTA ACADÊMICA
Faculdade de Direito do Recife
Vol.91 N.01 - Anno CX XVIII
LIAKOPOULOS, Dimitri. INTERPRETATION OF CRIME OF “MEN RAPE” UNDER INTERNATIONAL CRIMINAL JUSTICE.
Revista Acadêmica da Faculdade de Direito do Recife - ISSN: 2448-2307, v. 91, n.1, p.58-84, ago. 2020. ISSN 2448-2307.
<Disponível em: https://periodicos.ufpe.br/revistas/ACADEMICA/article/view/239140 >
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crimes in different countries
2
. This investigation has stated that: “evidence of sexual crimes is
overwhelming, but the cases are so many that no prosecution can be brought for all”
3
. Despite
this finding of “impunity” by international criminal law
4
for serious sexual crimes
5
jurisprudence
still know proved that: international criminal law has been vital in fostering the understanding of
sexual violence against male in armed conflict
6
as a weapon of war that targets not only a woman
but a male role in international society
7
.
The developments in international criminal case law, in respect of the recognition that sexual
crimes fall within the scope of international war crimes against humanity and genocide crime
8
,
have been overshadowed by the often frivolous treatment of these crimes by the international
criminal justice
9
.
The remnants that have prevailed over these centuries for these crimes, that they were a by-
product of the war
10
, or that in any case they are incidental and secondary to the main crimes, did
not allow the provisions of the Statutes to be applied to a sufficient level
11
. The lack of previous
international jurisprudence has found the international criminal courts in a position to be forced
to make unstable interpretations or even to develop an important case-law which has often been
questioned by courts themselves
12
. The interpretations, of course, have often led to the departure
from the mechanistic perception of justice and the adoption of the aim towards full recognition of
the victims' human rights
13
. Other times, the principle of feasibility in the prosecution has
prevailed, to such an extent that it has led to several cases of impunity for perpetrators of crimes
2
G. ACQUAVIVA, War crimes at the ICTY: Jurisdictional and substantive issues, in R. BELLELLI (a cura di), International criminal
justice. Law and practice from the Rome Statute to its review, Ashgate Publishing, 2010, pp. 299ss.
3
K. AMBOS, Internationales Strafrecht, C.H. Beck, 2018.
4
F. MELLOH, Einheitliche Strafzumessung in den Rechtsquellen des ICC-Statuts, Dunker&Humblot, 2010.
5
H. ABTAHI, S.A. KOH, The emerging enforcement practice of the International Criminal Court, in Cornell International Law Journal,
2012, pp. 1ss. S. MOUTHAAN, Sexual violence against men and international law criminalising the unmentionable, in International Criminal
Law Review, 2013, pp. 667ss.
6
C. HENDERSON, Research handbook on international conflict and security, ed. E. Elgar Publishing, 2013, pp. 375-420.
7
C. EBOE-OSUJI, International law and sexual violence in armed conflicts, ed. Brill, 2012, pp. 146ss. K. AMBOS, Treatise on
international criminal law: vol. 2: The crimes and sentencing, Oxford University Press, 2014. C.S. MIBENGE, Sex and international Tribunals:
The erasure of gender from the war narrative, University of Pennsylvania Press, 2013.
8
A/HRC/37/65 of 1st March 2018: Human Rights Council: Joint study of the Special Rapporteur on the promotion of truth, justice,
reparation and guarantees of non-recurrence and the Special Adviser to the Secretary-General on the Prevention of Genocide. See in argument: P.
BEHRENS, R. HENNAM, Elements of genocide, ed. Routledge, 2013, pp. 194ss. Y. BEIGBEDER, International Criminal Tribunals, ed.
Palgrave, 2011. SÁNCHEZ REVERTE R.S., Referencia al crimen de genocidio aprocimation genocide crime, in Revista de estudios juridicos,
2016. M.J. KELLY, The debate or genocide in Darfur, Sudan, in University of California, Davis Journal of International Law & Policy, 2012, pp.
208ss. C. LINGAAS, Imagined identities: Defining the racial group in the crime of genocide, in Genocide Studies and Prevention: An
International Journal, 2016, pp. 80ss. R. M AISSON, Justice pènale internationale, ed. PUF, 2017. D.S. BETTWY, The genocide Convention and
unprotected groups: Is the scope of protection expanding under customary international law?, in Notre Dame Journal of International and
Comparative Law, 2011, pp. 102ss. H. BLAISE N GAMENI, La diffusion du droit international pènal dans les ordres juridiques africaines, ed.
L'Harmattan, 2017. K. CALVO-GOLLER, La procèdure et la jurisprudence de la Cour pènale internationale, ed. Lextenso, 2012.
9
A. BABINGTON-ASHAYE, A. COMRIE, A. ADENIRAN, International criminal investigations: Law and practice, Eleven
International Publishing, 2018. D. LIAKOPOULOS, Parità di armi nella giustizia penale internazionale, vol. 1, ed. Libellula University Press,
2018.
10
S. PARASHAR, What wars and “war bodies” know about international relations, in Cambridge Review of International Affairs, 2013,
pp. 621ss.
11
K. AMBOS, Sexual offenses in international criminal law, with a special focus on the Rome Statute of the International Criminal
Court (July 3, 2012), in M. BERGSMO, A. BUTENSCHØN SKRE, E.J. WOOD (eds.), Understanding and providing international sex crimes,
Torkel Opsahl Academic Epublisher, Beijing, 2012, pp. 144ss.
12
J. RAMJI-NOGALES, Questioning hierarchies of harm: Women, forced migration and international criminal law, in International
Criminal Law Review, 2011. J. HALLEY, Rape in Berlin: Reconsidering the criminalisation of rape in the international law of armed conflict, in
Melbourne Journal of International Law, 2008, pp. 80ss.
13
N. PILLAY, Sexual violence: Standing by the victim, in Case Western Reserve Journal of International Law, 2009, pp. 462ss.
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