Table of contents:
P.1. Evidence of an invasion by the penis into the vagina or anus.
P.2. Evidence of an invasion by the penis into the oral cavity.
3.2.1. Evidence of an invasion of the anal or genital opening with any object.
P.3. Evidence of an invasion of the vagina or anus with an object.
P.3.1. Evidence of an invasion of the vagina with a piece of wood.
3.2.2. Evidence of an invasion of the anal or genital opening with any other part of the body.
Element:
62 The concept of invasion is intended to be broad enough to be gender-neutral.
[General evidentiary comment]
P.1. Evidence of an invasion by the penis into the vagina or anus.
A. Legal source/authority and evidence:
The Prosecutor v. Jean-Pierre Bemba Gombo, Trial Judgement 21 March 2016
, paras. 464-466:"464. Having dragged P68 into a compound, the soldiers forcefully took off her clothes, threatened her with a weapon, threw her on the ground, and restrained her arms. Two of the men penetrated her vagina with their penises. She lost consciousness and then "could feel the pain of what they were doing". In light of the above, the Chamber finds that, at the end of October 2002, in a compound in the Bondoro neighbourhood of Bangui, two soldiers, by force, invaded P68s body by penetrating her vagina with their penises. According to P68, the psychological and medical consequences of the events included depression, a fear of armed soldiers, vaginal and stomach ailments, and HIV.
465. During the events, P68 heard her sister-in-law in the adjacent compound, "call[ing] out like someone who is truly afraid", but could not see her because of a fence. Later that afternoon, when P68s sister-in-law returned to their house, she explained that she had been "raped" by three soldiers of the same group that attacked P68. Thereafter, she had health problems.
466. Although P68s testimony does not further specify any details of her sister-in-laws alleged "rape", based on her description of the events she personally experienced, the Chamber considers that her use of the term indicates that the perpetrators penetrated her sister-in-laws body with a sexual organ or otherwise penetrated the anal or genital opening of the victim. In this regard, the Chamber notes P68s evidence that her sister-in-law was calling out in fear; the context in which the events occurred, including what happened to P68 in an adjacent compound; and the fact that the events were reported to P68 by her sister-in-law soon after they happened. In these circumstances, the Chamber finds that, at the end of October 2002, in a compound in the Bondoro neighbourhood of Bangui, three soldiers, by force, penetrated the body of P68s sister-in-law with a sexual organ or otherwise penetrated her anal or genital opening."
The Prosecutor v. Jean-Pierre Bemba Gombo, Trial Judgement 21 March 2016
, paras. 481, 483:"481. The first incident occurred between 15.00 and 19.00, at the end of October or beginning of November 2002. Twenty-two MLC soldiers, who spoke Lingala and were armed, brought eight women to the quay and then onto the deck of a ferry. The women were "terrorised", injured, frightened, and some were naked. The soldiers beat, kicked, and, after they fell down, undressed the women. While holding weapons, the soldiers took turns penetrating the womens vaginas with their penises. After the incident, P47 talked to the women, who were Central Africans from Boy-Rabe and PK12.
483. In relation to the first incident, the Defence cites an inconsistency as to the time of day, comparing P47s testimony that the first incident occurred at 17.30 and his prior statement that it occurred at 19.00. Considering that P47 consistently testified that the first incident occurred between 15.00 and 19.00, the relatively limited nature of the inconsistency, the length of time that has elapsed between the events and testimony, the traumatic circumstances, P47s demeanour when testifying about this incident, and his otherwise consistent description thereof, the Chamber finds that the inconsistency identified by the Defence as to the timing of the first incident does not undermine the reliability of P47s account. The Chamber therefore considers that P47s account on the first incident is reliable. In light of the above, the Chamber finds that, at the end of October or beginning of November 2002, on a ferry docked at the Port Beach naval base in Bangui, perpetrators, by force, invaded the bodies of eight women from Boy-Rabe and PK12 by penetrating their vaginas with their penises."
The Prosecutor v. Jean-Pierre Bemba Gombo, Trial Judgement 21 March 2016
, paras. 546, 548, 551-553:"546. Also on 5 March 2003, a group of around 20 armed soldiers intercepted Ms Pulcherie Makiandakama (V1) and other persons, who were hiding under beds in the local hospital in Mongoumba. The soldiers wore green military fatigues, with no insignia, informed V1 that their "President" was "Mr Bemba", and spoke Lingala with a DRC accent. Due to her familiarity with Lingala, V1 could differentiate between DRC and CAR Lingala accents. She could also distinguish MLC troops from CAR soldiers as the latter, inter alia, had stripes on their uniforms and spoke French and Sango.
548. Thereafter, the soldiers took V1 to a camp, next to the river bank, where two soldiers approached her, removed her trousers and undergarments, knocked her to the ground when she tried to fight back, and "slept with" and "raped" her in turns, while other soldiers looked on, "shouting with joy".
551. Upon arrival at the camp near the river, the soldiers threw V1 to the ground and stripped her naked. After four of the soldiers penetrated her vagina with their penises, she lost consciousness. When she regained consciousness, the other soldiers continued "raping" her, while some of them held her to the ground. V1 was bleeding from her vagina. Twelve soldiers in total penetrated her vagina, anus, and mouth with their penises. At that time, the soldiers were armed with rifles. Afterwards, V1 had pain in her vagina and lungs, and psychological problems. She felt like she was no longer treated as a human being and was called the "Banyamulengue wife"; such stigmatisation in her community left her unemployed and unable to provide for her children.
552. The Defence argued that V1s testimony is "incapable of belief" considering its scale, and highlighted various alleged inconsistencies with or omissions from her statement to the Legal Representative and her victim application. The Chamber notes that V1s victim application was written in French, a language she does not understand. She testified that it was not re-read to her in Sango. As to her prior statement to the Legal Representative, V1 accepted that she may have forgotten to mention some details. Noting the lapse of time between the events and testimony, the traumatic circumstances, the explanations given by V1 concerning alleged inconsistencies and omissions, her consistent testimony before the Chamber, and her demeanour, the Chamber finds that these inconsistencies and omissions do not undermine V1s testimony, which it considers to be generally reliable.
553. The Chamber notes that V1 did not specify what she meant when she testified that the soldiers "slept" with her and "raped" her during the first incident. However, noting her testimony that they removed her clothes, including her "undergarments", and her testimony concerning the second incident of rape, indicating her understanding of the term to include penile penetration of her body, the Chamber finds that, on 5 March 2003, at a camp on the riverbank in Mongoumba, two perpetrators, by force, invaded V1s body by penetrating her with their penises. In relation the second incident, the Chamber also finds that, on 5 March 2003, at a camp on the riverbank in Mongoumba, 12 perpetrators, by force, invaded V1s body by penetrating her vagina, anus and mouth with their penises."
Prosecutor v. Anto Furundija, Case No. IT-95-17/1-T, Judgement (TC), 10 December 1998, paras. 87, 174:
87. The attacks then moved on to Witness A: Accused B had warned Dugi, another soldier, not to hit her as he had "other methods" for women,118 methods which he then put to use. Accused B hit Witness A119 and forced her to perform oral sex on him. He raped her vaginally and anally, and made her lick his penis clean.120
118. T. 413; Prosecution Exhibit P3, p. 26; Defence Exhibit D13, p. 7.
119. Defence Exhibit D13, p. 7; Defence Exhibit 8, p. 6.
120. T. 415 and T. 350; Defence Exhibit D13, p. 6; Defence Exhibit D8, p. 6.
174. This act is the penetration of the vagina, the anus or mouth by the penis, or of the vagina or anus by other object. In this context, it includes penetration, however slight, of the vulva, anus or oral cavity, by the penis and sexual penetration of the vulva or anus is not limited to the penis.200
200. Ibid., [Prosecutions Pre-trial Brief] p. 15.
Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998, paras. 947, 958, 960-962:
947. Ms. Antic further testified that she was raped a second time by Hazim Delic. On this occasion, she said that she was ordered by Mr. Delic to go to Building B with Ms. Cecez, to take a bath. She stated that she complied with this order, and was then taken to the same room where she had been raped previously. She testified that Delic started to rape her anally causing her great pain and her anus to bleed. She stated that he turned her on to her back and raped her vaginally.
958. The Trial Chamber thus finds that Ms. Antic was raped for the first time on the night of her arrival in the prison-camp. On this occasion she was called out of Building A and brought to Hazim Delic in Building B, who was wearing a uniform. He began to interrogate her and told her that if she did not do whatever he asked she would be sent to another camp or she would be shot. Mr. Delic ordered her to take her clothes off, threatened her and ignored her crying pleas for him not to touch her. He pointed a rifle at her while she took her clothes off and ordered her to lie on a bed. Mr. Delic then raped her by penetrating her vagina with his penis, he ejaculated on the lower part of her stomach and continued to threaten and curse her.
960. The second rape occurred when Hazim Delic came to Building A and ordered Ms. Antic to go to Building B to wash herself. After doing so, she was led to the same room in which she was first raped, where Delic, who had a pistol and a rifle and was in uniform, was sitting on a desk. She started crying once again out of fear. He ordered her to take her clothes off. She kept telling him that she was sick and asking him not to touch her. Out of fear that he would kill her she complied with his orders. Mr. Delic told her to get on the bed and to turn around and kneel. After doing so he penetrated her anus with his penis while she screamed from pain. He was unable to penetrate her fully and she started to bleed. Mr. Delic then turned her around and penetrated her vagina with his penis and ejaculated on her lower abdomen. After the rape Ms. Antic continued crying, felt very ill and experienced bleeding from her anus, which she treated with a compress, and was provided with tranquillisers.
961. The third rape occurred in Building A. It was daylight when Hazim Delic came in, armed with hand grenades, a pistol and rifle. He threatened her and she again said that she was a sick woman and asked him not to touch her. He ordered her to undress and get on the bed. She did so under pressure and threat. Mr. Delic then pulled his trousers down to his boots and raped her by penetrating her vagina with his penis. He then ejaculated on her abdomen.
962. The Trial Chamber finds that acts of vaginal penetration by the penis and anal penetration by the penis, under circumstances that were undoubtedly coercive, constitute rape. These rapes were intentionally committed by Hazim Delic who was an official of the Bosnian authorities running the prison-camp.
Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998,, paras. 424, 430:
424. She said she was then separated from the other girls and taken to a field by one Interahamwe called Antoine. When she refused to sit down, he pushed her to the ground and put his sex into hers, clarifying on examination that he penetrated her vagina with his penis.
430. Witness NN confirmed on examination that the man who raped her penetrated her vagina with his penis, saying he did it in an atrocious manner, mocking and taunting them. She said her sister was raped by the other man at the same time, near her, so that they could each see what was happening to the other. Afterwards, she said she begged for death.
B. Evidentiary comment
It should be noted that this definition of rape may not cover all the situations where it would be appropriate to enter a rape conviction. For example, if f two men were forced to have sexual intercourse with each other, one of victims would not, pursuant to the current definition of rape, be regarded as having been raped in the absence of penetration of his body. Yet, this type of sexual violence is not uncommon during conflicts. A reassessment of the definition is necessary to allow such an incident to be regarded as rape with respect to both the victims.
P.2. Evidence of an invasion by the penis into the oral cavity.
A. Legal source/authority and evidence:
Prosecutor v. Anto Furundija, Case No. IT-95-17/1-T, Judgement (TC), 10 December 1998, paras. 181-184:
181. It is apparent from our survey of national legislation that, in spite of inevitable discrepancies, most legal systems in the common and civil law worlds consider rape to be the forcible sexual penetration of the human body by the penis or the forcible insertion of any other object into either the vagina or the anus.
182. A major discrepancy may, however, be discerned in the criminalisation of forced oral penetration: some States treat it as sexual assault, while it is categorised as rape in other States. Faced with this lack of uniformity, it falls to the Trial Chamber to establish whether an appropriate solution can be reached by resorting to the general principles of international criminal law or, if such principles are of no avail, to the general principles of international law.
183. The Trial Chamber holds that the forced penetration of the mouth by the male sexual organ constitutes a most humiliating and degrading attack upon human dignity. The essence of the whole corpus of international humanitarian law as well as human rights law lies in the protection of the human dignity of every person, whatever his or her gender. The general principle of respect for human dignity is the basic underpinning and indeed the very raison d'?tre of international humanitarian law and human rights law; indeed in modern times it has become of such paramount importance as to permeate the whole body of international law. This principle is intended to shield human beings from outrages upon their personal dignity, whether such outrages are carried out by unlawfully attacking the body or by humiliating and debasing the honour, the self-respect or the mental well being of a person. It is consonant with this principle that such an extremely serious sexual outrage as forced oral penetration should be classified as rape.
184. Moreover, the Trial Chamber is of the opinion that it is not contrary to the general principle of nullum crimen sine lege to charge an accused with forcible oral sex as rape when in some national jurisdictions, including his own, he could only be charged with sexual assault in respect of the same acts. It is not a question of criminalising acts which were not criminal when they were committed by the accused, since forcible oral sex is in any event a crime, and indeed an extremely serious crime. Indeed, due to the nature of the International Tribunal's subject-matter jurisdiction, in prosecutions before the Tribunal forced oral sex is invariably an aggravated sexual assault as it is committed in time of armed conflict on defenceless civilians; hence it is not simple sexual assault but sexual assault as a war crime or crime against humanity. Therefore so long as an accused, who is convicted of rape for acts of forcible oral penetration, is sentenced on the factual basis of coercive oral sex - and sentenced in accordance with the sentencing practice in the former Yugoslavia for such crimes, pursuant to Article 24 of the Statute and Rule 101 of the Rules - then he is not adversely affected by the categorisation of forced oral sex as rape rather than as sexual assault. His only complaint can be that a greater stigma attaches to being a convicted rapist rather than a convicted sexual assailant. However, one should bear in mind the remarks above to the effect that forced oral sex can be just as humiliating and traumatic for a victim as vaginal or anal penetration. Thus the notion that a greater stigma attaches to a conviction for forcible vaginal or anal penetration than to a conviction for forcible oral penetration is a product of questionable attitudes. Moreover any such concern is amply outweighed by the fundamental principle of protecting human dignity, a principle which favours broadening the definition of rape.
B. Evidentiary comment
This means of proof would cover an invasion by the penis into the mouth of either the victim or the perpetrator. However, there is no relevant authority for the latter scenario.
3.2.1. Evidence of an invasion of the anal or genital opening with any object.
P.3. Evidence of an invasion of the vagina or anus with an object.
P.3.1. Evidence of an invasion of the vagina with a piece of wood.
A. Legal source/authority and evidence
Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, paras. 429, 596, 686:
429. [ ] Witness KK also testified regarding the rape of Tutsi women married to Hutu men. She described, after leaving the bureau communal, encountering on the road a man and woman who had been killed. She said the woman, whom she knew to be a Tutsi married to a Hutu, was not exactly dead and still in agony. She described the Interahamwes forcing a piece of wood into the womans sexual organs while she was still breathing, before she died.
596. 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.
686. An act such as that described by Witness KK in her testimony the Interahamwes thrusting a piece of wood into the sexual organs of a woman as she lay dying constitutes rape in the Tribunals view.
B. Evidentiary comment:
There is evidence in reports of rape with other objects, such as sharpened objects, (i.e. knives, broken bottles, etc.) sticks, and guns. However, this is not yet reflected in international jurisprudence to date.
3.2.2. Evidence of an invasion of the anal or genital opening with any other part of the body.
