Sexual Slavery as a War Crime: A Reform Proposal

For the first time in the history of international criminal law, the ICC Elements of Crimes included a statutory definition of sexual slavery as a war crime and as a crime against humanity. Such definition is derived from, and in fact almost identical to, the definition of enslavement in the same text. In July 2019, that language for the first time was adopted and applied in the conviction of general Bosco Ntaganda, the first ever conviction for sexual slavery as a war crime and as a crime against humanity at the ICC, as part of the situation in the Democratic Republic of Congo.

This note argues for a reform in the language of the crime of sexual slavery as present in the ICC Elements of Crimes. The present formulation of such crime fails to correctly provide an independent standing for sexual slavery: that is, it does not adequately characterize the sexual nature of the crime as opposed to the broader category of enslavement. The note will focus on the drafting history that led to the present language, as well as on the problems arising from the Ntaganda decision.

The note highlights the theoretical and practical limits of the present formulation, and it will address the academic critiques the language already received. It will then provide for an alternative wording for the first element of the crime, a wording that is more reflective of the purpose arising from the negotiating history at Rome and that emphasizes the sexual nature of the offense.