The Hague, March 31, 2011 (FH) - Amnesty International (AI) released in March a 50-page document entitled "Rape and sexual violence - human rights law and standards in the international criminal court".

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The human rights organization aims to identify "how the crimes of rape and sexual violence must, as a requirement of its own statute and a matter of international human rights law, be interpreted and applied with equality between men and women by the International Criminal Court (the Court)."

The Court has yet to rule on this matter in its jurisprudence, notes AI.

Congolese Jean-Pierre Bemba is currently on trial before the ICC on charges of crimes against humanity and crimes of war, notably for rapes and looting perpetrated by his militia in 2002 and 2003 in Central African Republic (CAR).

According to AI, the Court "should address the behaviour and actions of the perpetrators and how this affects the victim's ability (...) to enjoy his or her human right to physical and mental integrity and sexual autonomy, without discrimination."

AI also states that "consensual decision is a decision made without force, threat of force, coercion, or taking advantage of a coercive environment. Where evidence of force, threat of force or coercion is present, there should not absolutely be no additional element of law of consent for the prosecution to prove."

The organization insists that "the International Criminal Court should take the opportunity of its first cases of rape and sexual violence to emphasize that the use of force, threat of force, and coercion necessarily defeat the possibility of ‘genuine consent' and that any person who engages in sexual acts when he or she uses force, threat of force or coercion, including taking advantage of coercive circumstances, is acting illegally and committing an act of rape or sexual violence.".

Therefore, AI invites the judges to rely more on International human rights Law than on Domestic courts, where "sexual autonomy is frequently conflated with narrow view of consent (...) which do not capture the reality of how acts of rape and sexual violence are committed, and this misunderstanding affects how such acts are treated in criminal investigations, prosecutions and criminal judgments."

If the victim is silent or does not resist, it should not be interpreted  as if she gave her consent, reads AI document.

Consequently, AI suggests that defence lawyers strategies should be modified:  "Instead of being required to ask directly whether or not the victim consented to the sexual act - questioning that as frequently caused extreme distress and humiliation to witnesses - advocates should only ask about how the circumstances of the act, and the behavior of the perpetrator, affected the victim or witness, whether they were able to make unfettered decisions about the acts in question."

At last, AI requests that acts of rape and sexual violence causing severe pain should be considered as torture and charged as such. In Bemba's case, charges of rape as a crime against humanity alone were confirmed.


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