A/HRC/47/26 physical force. Threats, intimidation, extortion and other forms of duress that preyed on fear or desperation could constitute coercion, and coercion could be inherent in certain circumstances, such as armed conflict or the military presence of the Interahamwe among refugee Tutsi women.39 45. Similarly, the International Tribunal for the Former Yugoslavia, in its judgment in the landmark case Prosecutor v. Furundžija in 1998, provided important advancements in the criminalization of rape in the context of international crimes.40 While in the Statute of the Tribunal the only explicit reference to rape is as a crime against humanity, the defendant was charged with the crime of rape as a violation of common article 3 of the Geneva Conventions. In its judgment, the Tribunal found that rape might also be prosecuted as a grave breach of the Geneva Conventions and as a violation of the laws or customs of war. These findings imply that all parties to the Geneva Conventions are obliged to prosecute any person suspected of having committed rape as a grave breach of those Conventions. 41 Another development was the determination by the Tribunal that forced oral sex constituted rape, which represented a departure from definitions of rape in the country concerned.42 46. In terms of the definitional elements of rape, another benchmark at the International Tribunal for the Former Yugoslavia came three years later, in 2001, in its judgment in the case Prosecutor v. Kunarac et al., in which the accused were charged with the crime of rape as a violation of common article 3 of the Geneva Conventions and as a crime against humanity.43 47. Noting that there was no specific definition of the crime of rape in international humanitarian law or in the Statute of the Tribunal, the trial chamber conducted a survey of basic principles for identifying the constituent elements of the crime of rape. It found that the actus reus of the crime of rape in international law was constituted by the sexual penetration, however slight, (a) of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator, or (b) of the mouth of the victim by the penis of the perpetrator, where such sexual penetration occurred without the consent of the victim. Consent for that purpose must be consent given voluntarily, as a result of the victim’s free will, assessed in the context of the surrounding circumstances. The mens rea was the intention to effect that sexual penetration, and the knowledge that it occurred without the consent of the victim.44 The trial chamber concluded that sexual penetration would constitute rape if it was not truly voluntary or consensual on the part of the victim. 45 Lack of consent was therefore recognized as a central element of the definition of the crime of rape. 48. On appeal, the appellants argued that the use of coercion or force, as opposed to lack of consent, was a basic element of the crime of rape. The appeals chamber rejected the appellants’ argument, reasoning that force or threat of force provided clear evidence of nonconsent, but that force was not an element per se of rape.46 The Tribunal thus established that the lack of consent is per se a constitutive element of rape as a crime under international criminal law. 49. In addition to definitional elements of rape as an international crime, the rules of procedure and evidence of both Tribunals contained an important set of provisions for gender-sensitive and victim-centred prosecution of rape. 39 40 41 42 43 44 45 46 Ibid., para. 688. International Tribunal for the Former Yugoslavia, Prosecutor v. Furundžija, Case No. IT-95-17/1-T, Judgment, 10 December 1998. There are 196 parties to the Geneva Conventions, including all Member States, the Holy See, the State of Palestine and the Cook Islands. International Tribunal for the Former Yugoslavia, Prosecutor v. Furundžija, Judgment, para. 183. International Tribunal for the Former Yugoslavia, Prosecutor v. Kunarac et al., Case No. IT-96-23-T & IT-96-23/1-T, Judgment, 22 February 2001. Ibid., para. 460. Ibid., para. 440. International Tribunal for the Former Yugoslavia, Prosecutor v. Kunarac et al., Appeal Judgment, 12 June 2002, para. 129. In the case Prosecutor v. Gacumbitsi of the International Criminal Tribunal for Rwanda, the definition in the Kunarac et al. case was reconfirmed on appeal (Case No. ICTR-200164-A, Appeal Judgment, 7 July 2006). 9