José Cardoso Fereira Judgment of 5 April 2003 (ETSPSC)

In the ICTY's decision in the Celebici case, three defendants were found guilty of grave breaches of the Geneva Conventions and war crimes for their roles in the commission of acts of sexual violence in the Celebici concentration camp. The ICTY indicted and prosecuted several defendants based on superior authority or command responsibility. In convicting the camp commander and deputy commander in the Celebici case, the Trial Chamber stated that superior officers could be held accountable not only for ordering, instigating or planning criminal acts carried out by subordinates but also for failing to prevent or repress criminal acts of subordinates. From U.N. Economic and Social Council, Contemporary Forms of Slavery: Systematic rape, sexual slavery and slavery-life practices during armed conflict, 54-56 (E/CN.4/Sub.2/2000/21) (6 June 2000). (PDF, 36 pages).  In this case, the Trial Chamber convicted the defendants for rape "as torture, a grave breach of the Geneva Conventions punishable under Article 3 of the [ICTY] Statute, as recognized by article 3(a)(a) of the Geneva Conventions."  The following excerpt from the judgment sets out the criteria by which the Trial Chamber determined that the sexual violence involved in the case constituted rape:

The Trial Chamber considers the rape of any person to be a despicable act which strikes at the very core of human dignity and physical integrity.  The condemnation and punishment of rape becomes all the more urgent where it is committed by, or at the instigation of, a public official, or with the consent or acquiescence of such an official.  Rape causes severe pain and suffering, both physical and psychological.  The psychological suffering of persons upon whom rape is inflicted may be exacerbated by social and cultural conditions and can be particularly acute and long lasting.  Furthermore, it is difficult to envisage circumstances in which rape, by, or at the instigation of a public official, or with the consent or acquiescence of an official, could be considered as occurring for a purpose that does not, in some way, involve punishment, coercion, discrimination or intimidation.  In the view of this Trial Chamber this is inherent in situations of armed conflict.  Accordingly, whenever rape and other forms of sexual violence meet the aforementioned criteria, then they shall constitute torture, in the same manner as any other acts that meet this criteria.
Rape prosecuted as genocide: Landmark First Women's Definition of Rape under International Law:

The Statute of the International Criminal Tribunal for Rwanda (ICTR) defines rape as a crime against humanity when "committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds." (Article 3). The Akyesu case, decided by the ICTR in September 1998, found Jean-Paul Akayesu guilty of crimes against humanity for ordering, instigating and aiding in multiple acts of rape, despite a failure to find that the defendant personally raped anyone. The Akyesu decision is also significant for the broad definition of rape formulated by the ICTR, as a "physical invasion of a sexual nature, committed on a person under circumstances which are coercive." The ICTR also recognized, in deciding the Akyesu case, that rape could be used as a form of genocide, if committed "with specific intent to destroy, in whole or in part, a particular group, targeted as such. . . . rape and sexual violence . . . are even . . . one of the worst ways of inflicting harm on the victim as he or she suffers both bodily and mental harm."

The International Criminal Tribunal for Rwanda found Jean-Paul Akayesu, former mayor of the Taba commune, guilty of crimes of genocide and crimes against humanity arising out of massacres of ethnic Tutsis in the Taba commune in 1994.  The Trial Chamber noted that genocide is defined in the Convention for the Prevention and Punishment of the Crime of Genocide as "the act of committing certain crimes, including the killing of members of the group or causing serious physical or mental harm to members of the group, with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such." para. 13.  The Trial Chamber found that genocide targeting the Tutsi as a group in Rwanda was committed in 1994. para. 19.  The Chamber held that although the presence of an armed conflict may have facilitated the genocide by providing a pretext to incite violence against the Tutsis by identifying them with an armed faction, the presence of the armed conflict cannot be a mitigating circumstance for the genocide. para. 19.  The Chamber noted that in his official capacity, Akayesu had effective authority over the communal police and was responsible for maintaining order, but that after April 18, 1994 he was present at acts of violence against Tutsis, including armed instances of rape, and even ordered several killings. paras. 26-27.

The Chamber noted that there was no commonly-accepted definition of the term "rape" in international law. para. 37. Noting that rape was a form of aggression, the Chamber defined rape as "a physical invasion of a sexual nature, committed on a person under circumstances which are coercive. Sexual violence, including rape, is not limited to physical invasion of the human body and may include acts which do not involve penetration or even physical contact. The Chamber note[d] in this context that coercive circumstances need not be evidenced by a show of physical force. Threats, intimidation, extortion and other forms of duress which prey on fear or desperation may constitute coercion." para. 38.

From International Criminal Tribunal for Rwanda, The Prosecutor v. Jean-Paul Akayesu, ICCTR-96-4-T (Sept. 2, 1998) (non-official judgment summary text released by the Tribunal) printed in International Law: In Brief, Association of the Society of International Law (August 31-Sept. 4, 1998).