How to understand the war crime of rape?

When I was reading the Klamberg Commentary to the 1998 Rome Statute, with regard to  the elements of war crime, I was a bit confused about the invasion conduct of rape. The Rome Statute  Elements of Crimes, and Rules of Procedure and Evidence are the basic documents for an analysis of each provision. After thinking for a while, I found that the stipulation in the Rome Statute is very open from some perspectives. Here I want to share my feelings.

Article 8 of the Rome Statute of the International Criminal Court

1. The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes.

 2. ——–

(e) Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts:

(vi) Committing rape, sexual slavery, enforced prostitution, forced  pregnancy, as defined in article 7, paragraph 2 (f), enforced  sterilization, and any other form of sexual violence also constituting  a serious violation of article 3 common to the four Geneva  Conventions;

War crime of rape

Elements

  1. The perpetrator invade the body of a person by conduct resulting in penetration, however slight , of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body.

How to understand the objective element regarding the invasion conduct of a perpetrator?

My understanding is as follows:

  1. The sexuality of the people involved:

The perpetrators were either female or male.

And the victims were also either female or male.

  1. The conduct of the perpetrator:

The perpetrator could use his/her own sexual organ to penetrate any part of the body of the victim;

The perpetrator could force the victim to use the victim’s sexual organ to penetrate any part of the body of the perpetrator.

The perpetrator could use any object or any other part of his/her body to penetrate the anal or genital of the victim.

  1. The degree of penetration:

No matter how slight of the penetration.

My question: How to literally understand the genital “opening” of the victim?

What’s the difference between Chinese national rape crime objective elements?

Article 236 of the Criminal Law of the People’s Republic of China [translations are unofficial]

Whoever rapes a woman by force, threat or other means shall be sentenced to fixed-term imprisonment of not less than three years and not more than ten years.

Whoever has sexual relations with a girl under the age of 14 shall be deemed to have committed rape and shall be given a heavier punishment.

Any of the following categories of persons who rapes a woman or has sexual relations with a girl shall be sentenced to fixed-term imprisonment of not less than ten years, life imprisonment or death:

(1) those who rape a woman or have sexual relations with a girl with flagrant circumstances;

(2) those who rape several women or have sexual relations with several girls;

(3) those who, in a public place, rape a woman in public;

(4) two or more persons who rape the same victim in succession; or

(5) those who cause severe bodily injury or death of the victim or cause other serious consequences.

 

My understanding of Article 236

  1. The sexuality of the people involved:

It seems that the perpetrators were either female or male.

In practice, only male perpetrators could conduct the invasion. Most of the perpetrators are male. A female may also be deemed to have committed rape, if she helped the perpetrator to rape a woman or to have a sexual relationship with a girl.  However, if only a female have ”raped” a woman or have sexual relationship with a girl, the female may not be deemed to committed crime of rape. Therefore, a female may only committed a rape with a male.

The victims were women or girls under the age of 14.  The men and boys generally cannot be considered as victims. So only female could be victims of rape.

  1. The conduct of the perpetrator:

This provision does not dentally describe the conduct of the perpetrators. There are contentious debates about the conduct. There are different standards in theory to assess of whether the rape has finished.  A completed crime can be divided into 3 phrases, that is the preparation phrase, conducting phrase and finished phrase.

Generally, if the perpetrator successfully used his own sexual organ to penetrate the sexual organ, the anal or genital of the victim, the rape crime may be regarded as finished. However, if he only used his own sexual organ to penetrate other part of the body of the victim, there exist undeniable doubts. Some commenters think that it may be at the preparation phrase of rape. And some other commenters even held that it is not crime of rape, but crime of outrages upon person dignity.

The following two situations are not very opened discussed.

[The perpetrator could force the victim to use the victim’s sexual organ to penetrate any part of the body of the perpetrator.

The perpetrator could use any object or any other part of his/her body to penetrate the anal or genital of the victim.]

  1. The degree of penetration:

No matter how slight of the penetration.

 

We can see that the scope crime of rape at Chinese national level is narrower and limited than that at the international criminal court. The war crime of rape is happened in the context and associated with armed conflicts. That is to say, if the conduct of rape happened in the context of armed conflicts, while there is no nexus between the conduct of rape and the armed conflict, the perpetrate should only be deemed to commit rape[Not war crime of rape].  I would like to say, the rape as a crime is a natural crime, comparing to economic crimes.  One of the purposes to punish the perpetrator, in war or in peace, is to protect the sexual right of the victims. And both female and male should have sexual right.  Therefore, the rape over man and boys should not be excluded from the legislation. [Even though it is more difficult to make investigation and collect evidence than rape crime against women and girls.]

In addition, most victims are injured physically and mentally. The limitation of the penetration to the sexual part of the victim should be removed. More debates should be openly discussed to protect the victims and also to protect the right of due process of suspects.

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