4. The conduct was of a gravity comparable to that of a grave breach of the Geneva Conventions

3. 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 person's or persons' incapacity to give genuine consent

3.1. The perpetrator committed an act of a sexual nature against one or more person; OR

ICC

While considering sexual violence as a crime against humanity, the Pre-Trial Chamber in Kenyatta held that:

"not every act of violence which targets parts of the body commonly associated with sexuality should be considered an act of sexual violence. In this respect, the Chamber considers that the determination of whether an act is of a sexual nature is inherently a question of fact. The Chamber finds that the evidence placed before it does not establish the sexual nature of the acts of forcible circumcision and penile amputation visited upon Luo men. Instead, it appears from the evidence that the acts were motivated by ethnic prejudice and intended to demonstrate cultural superiority of one tribe over the other. Therefore, the Chamber concludes that the acts under consideration do not qualify as other forms of sexual violence."[1]

ICTY

According to the Trial Chamber in Furundžija,

"international criminal rules punish not only rape but also any serious sexual assault falling short of actual penetration. It would seem that the prohibition embraces all serious abuses of a sexual nature inflicted upon the physical and moral integrity of a person by means of coercion, threat or force or intimidation in a way that is degrading and humiliating for the victim's dignity."[2]

The Trial Chamber in Milutinović et al. endorsed the approach of ICTR - Akayesu regarding sexual assault as persecution. The Trial Chamber held that:

"'sexual assault' may be committed in situations where there is no physical contact between the perpetrator and the victim, if the actions of the perpetrator nonetheless serve to humiliate and degrade the victim in a sexual manner. [...] Furthermore, the Chamber considers it inappropriate to place emphasis on the sexual gratification of the perpetrator in defining the elements of "sexual assault". In the context of an armed conflict, the sexual humiliation and degradation of the victim is a more pertinent factor than the gratification of the perpetrator"."[3]

ICTR

Sexual violence was defined by the court in Akayesu as:

"any act of a sexual nature which is committed on a person under circumstances which are coercive. 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."[4]

SCSL

Furthermore, in Brima et al. the Trial Chamber found that:

"the prohibition embraces all serious crimes of a sexual nature inflicted upon the physical and moral integrity of a person by means of coercion, threat of force or intimidation."[5]

3.2. The perpetrator caused such person or persons to engage in an act of a sexual nature.

3.3. The perpetrator's or victim's acts of a sexual nature occurred through force, 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 person's or persons' incapacity to give genuine consent.

ICTY

According to the Trial Chamber in Milutinović et al. (regarding sexual assault as persecution),

"[a]ny form of coercion, including acts or threats of violence, detention, and generally oppressive surrounding circumstances, is simply evidence that goes to proof of lack of consent. In addition, the Trial Chamber is of the view that when a person is detained, particularly during an armed conflict, coercion and lack of consent can be inferred from these circumstances. In this regard, the force required for a sexual assault is only that which is necessary to perform the act of a sexual nature, and actual coercion is not a required element."[6]

ICTR

In Akayesu, the Trial Chamber stated that:

"coercive circumstances need not be evidenced by a show of physical force. Threats, intimidation, extortion and other forms of duress which prey on fear or desperation may constitute coercion, and coercion may be inherent in certain circumstances, such as armed conflict or the military presence of Interahamwe among refugee Tutsi women at the bureau communal."[7]

Furthermore, the Rukundo Trial Chamber stated that:

"the element of non-consent in the crime of rape [or sexual violence] can be proved beyond reasonable doubt when the Prosecution demonstrates the existence of coercive circumstances under which meaningful consent is not possible."[8]

3.3.1. Evidence of use of force

3.3.2. Evidence of threat of force.

3.3.3. Evidence of detention.

3.3.4. Evidence of psychological oppression.

3.3.5. Evidence of abuse of power.

3.3.6. Evidence of a coercive environment.

3.3.7. Evidence of incapacity to give genuine consent.