5.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.

5.1.Invading 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.

5.1.1.Evidence of an invasion of any part of the body of the victim or of the perpetrator with a sexual organ.

5.2.Invading the body of a person by conduct resulting in penetration, however slight, of the anal or genital opening of the victim with any object or any other part of the body.

5.2.1.Evidence of an invasion of the anal or genital opening with any object.

5.2.2.Evidence of an invasion of the anal or genital opening with any other part of the body.

5. 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.

Prosecutor v. Jadranko Prlić, Case No. IT-04-74-T, Judgement (TC), 29 May 2013, para. 69: 

"69. The physical element of the crime or rape is constituted by sexual penetration, even if partial, (a) of the vagina or anus of the victim by the rapist’s penis, or by any other object used by him, or (b) of the mouth by the rapist’s penis, provided that such sexual penetration occurs without the consent of the victim. Consent for this purpose must be given voluntarily and must result from the exercise of the victim’s free will, which is evaluated in light of the circumstances. The mental element is constituted by the intent to effect such sexual penetration and the knowledge that this is occurring without the victim’s consent."

Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Public Redacted Version of Judgement Issued on 24 March 2016 – Volume I of IV (TC), 24 March 2016, para. 511:

"511. Rape is listed as a crime against humanity under Article 5(g) of the Statute and may constitute an underlying act of persecution if the general requirements of persecution are met. Rape involves 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, where such sexual penetration occurs without the consent of the victim. Consent for this purpose must be given voluntarily, as a result of the victim’s free will, and is assessed in the context of the surrounding circumstances. The perpetrator must intend to effect this penetration and have the knowledge that it occurs without the consent of the victim."

5.1.I nvading 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.

ICC

As noted by the Trial Chamber in The Prosecutor v. Jean-Pierre Bemba Gombo:

"Rape requires "invasion" of a person’s body 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" The Chamber emphasises that, according to the Elements of Crimes, "the concept of invasion is intended to be broad enough to be gender-neutral". Accordingly, "invasion", in the Court’s legal framework, includes same-sex penetration, and encompasses both male and/or female perpetrators and victims. The Chamber notes that the definition of rape encompasses acts of "invasion" of any part of a victim’s body, including the victim’s mouth, by a sexual organ. Indeed, as supported by the jurisprudence of the International Criminal Tribunal for the former Yugoslavia ("ICTY"), oral penetration, by a sexual organ, can amount to rape and is a degrading fundamental attack on human dignity which can be as humiliating and traumatic as vaginal or anal penetration."[1]

ICTY

As noted by the Trial Chamber in Furundžija:

"[T]he following may be accepted as the objective elements of rape: (i) 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; (ii) by coercion or force or threat of force against the victim or a third person."[2]

ICTR

The Trial Chamber in Nyiramasuhuko et al. further clarified that:

"The actus reus of rape involves the non-consensual penetration, however slight, of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator, or of the mouth of the victim by the penis of the perpetrator."[3]

SCSL

In the Taylor case, the Appeals Chamber held that:

"The Trial Chamber found that it was legally permissible to enter cumulative convictions for the crimes of rape (Count 4) and sexual slavery (Count 5). It concluded that although both crimes are forms of sexual violence, each crime contains a distinct element not required by the other: first, rape requires non-consensual sexual penetration, while sexual slavery can be committed through a range of sexual acts; and second, sexual slavery requires proof that the perpetrator exercised control or ownership over the victim, while rape does not.[ …] The Appeals Chamber agrees with the Trial Chamber that, for the reasons it stated, the offences of rape and sexual slavery each require proof of an element not required by the other." [4]

The Trial Chamber in Sesay et al. held that:

"[...] The first part of the provision refers to the penetration of any part of the body of either the victim or the Accused with a sexual organ. The 'any part of the body' in this part includes genital, anal or oral penetration. [...] This definition of invasion is broad enough to be gender neutral as both men and women can be victims of rape."[5]

In addressing whether or not witnesses need to describe the act of penetration, the Trial Chamber in Sesay et al. was satisfied that:

"[T]he term "rape" by credible witnesses describes acts of forced sexual penetration consistent with the actus reus of the offence of rape."[6]

5.1.1. Evidence of an invasion of any part of the body of the victim or of the perpetrator with a sexual organ.

5.2.I nvading the body of a person by conduct resulting in penetration, however slight, of the anal or genital opening of the victim with any object or any other part of the body.

ICTR

The Akayesu Trial Chamber noted that:

"While rape has been defined in certain national jurisdictions as non-consensual intercourse, variations on the act of rape may include acts which involve the insertion of objects and/or the use of bodily orifices not considered to be intrinsically sexual [...] The Chamber considers that rape is a form of aggression and that the central elements of the crime of rape cannot be captured in a mechanical description of objects and body parts."[7]

SCSL

Furthermore, in Sesay et al., the Trial Chamber stated that:

"The second part of the provision refers to the penetration of the genital or anal opening of the victim with any object or any other part of the body. This part is meant to cover penetration with something other than a sexual organ, which could include either other body parts or any other object. This definition of invasion is broad enough to be gender neutral as both men and women can be victims of rape."[8]

5.2.1. Evidence of an invasion of the anal or genital opening with any object.

5.2.2. Evidence of an invasion of the anal or genital opening with any other part of the body.