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

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

According to Micheal Cottier: "it might be argued that the drafters intended to limit the jurisdiction of the Court to only such "other form[s] of sexual violence" that reach a certain gravity or threshold in order to exclude any "lesser" form of sexual violence or harrassment that would not reach this threshold. The wording might thus be interpreted as requiring that such "other forms of sexual violence" must, at the time of the exercise of jurisdiction by the Court, have been recognized as also constituting a grave breach. Thus, the wording would recognize that further forms of sexual violence which at the time of the Rome Conference were not (yet) considered grave breaches might in the future, as international law further develops, be recognized as constituting grave breaches³⁶⁵. The phrase "also constituting a grave breach of the Geneva Conventions" might however also be interpreted as requiring that the sexual offence must also fulfill the elements of a(nother) grave breach, or at least reach a degree of gravity comparable to the gravity of a grave breach³⁶⁶. However, these two latter understandings seem to be contRadićted by the substitution of the wording "amounting to a grave breach" by "also constituting a grave breach", and by the fact that the offenses were included under "serious violations of the laws and customs of war". In addition, to argue that the wording stipulates technical requirements of the grave breaches for sexual offenses such as the limitation to protected persons might result in a more restrictive range of sexual violence crimes in international than in internal armed conflicts³⁶⁷, which might not be that the drafters have intended." (in Michael Cottier, "Article 8" in Otto Triffterer, ed, Commentary on the Rome Statute of the International Criminal Court (1999) para. 207).

³⁶⁶However, article 7 para.1 (g) stipulates the requirement "of comparable gravity" explicitly.

³⁶⁷See article 8 para.2(e)(vi) : "any other form of sexual violence also constituting a serious violation of article 3 common to the four Geneva Conventions" (emphasis added)."

We leave to the judges of the ICC the task of developing a test evaluating the gravity of the conduct and to develop precedents on this particular element of the crime.