Conflicting interpretations of ‘sexual violence’ in the International Criminal Court: Recent Cases

The Rome Statute of the International Criminal Court (ICC), which was adopted in 1998 and came into force in 2002, enumerates a broader range of sex crimes than any previous instrument of international criminal law. These include rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation and ‘any other form of sexual violence’ of a comparable gravity, as war crimes and crimes against humanity. In applying the new residual crime of ‘any other form of sexual violence’, judges and prosecutors in the ICC have had to confront the complex question of what makes violence ‘sexual violence’, and how can the ‘gravity’ of sexual violence be determined, where that is a legal requirement. This article examines how these questions have been addressed in two cases currently before the ICC, from the situations in the Central African Republic and Kenya, where attempts have been made to prosecute forced nudity, forced male circumcision and mutilation of the male genitals as ‘sexual violence’ within the meaning of the Rome Statute.