Sexual and gender-based violence in Myanmar and the gendered impact of its ethnic conflicts in English can be led, through threats or trauma, not to procreate.”70 It is thus accepted that sexual violence can fall within the prohibited acts, and definitional scope of genocide. 41. Depending on the circumstances, sexual and gender-based violence may constitute crimes under international law, including war crimes,71 crimes against humanity,72 and genocide.73 As a war crime, rape is defined as a perpetrator invading 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”. 74 The Elements of Crime to the Rome Statute of the International Criminal Court explains that the war crime of rape occurs when, inter alia, the invasion was “committed by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or another person, or by taking advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine consent”. 75 The war crime of sexual violence is defined as a perpetrator committing “an act of a sexual nature against one or more persons or caus[ing] such person or persons to engage in an act of a sexual nature by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive environment or such person’s or persons’ incapacity to give genuine consent”. 76 42. To constitute war crimes, acts of sexual and gender-based violence must also have a nexus to an armed conflict and constitute one or more acts from an enumerated list of war crimes under international criminal law, such as rape, sexual violence, torture, cruel treatment, or outrages upon personal dignity.77 The International Criminal Tribunal for the former Yugoslavia (ICTY) has determined that the nexus between the conflict and the crime does not have to be causal but the conflict “must, at a minimum, have played a substantial part in the perpetrator’s ability to commit it, [the accused’s] decision to commit it, the manner in which it was committed or the purpose for which it was committed. Hence, if it can be established…that the perpetrator acted in furtherance of or under the guise of the armed conflict, it would be sufficient to conclude that his acts were closely related to the armed conflict.”78 Acts of sexual violence with a nexus to an armed conflict are therefore not the private or personal acts of fighters or commanders, but war crimes. 43. Sexual slavery, which this report documents, is a particularly serious form of enslavement that is also prohibited under international criminal law. As well as exercising any or all of the powers attaching to the right of ownership over the person(s), the perpetrator must also cause the person to engage in one or more acts of a sexual nature. 79 A commercial transaction is not required, as the notion of servitude relates primarily to “the impossibility of the victim’s changing his or her condition”.80 Sexual slavery also encompasses situations where women and girls are forced into “marriage”, domestic servitude or other forced labour involving compulsory sexual activity, including rape, by their captors.81 70 71 72 73 74 75 76 77 78 79 80 81 12 ICTR, Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, 2 September 1998, para. 508. See ICC Statute, e.g., arts. 8(2)(b)(xxii) and 8(2)(e)(vi). See ICC Statute, e.g., arts. 7(1)(g) and (h). See ICC Elements of Crimes, art. (6)(b) para. 1. ICC Elements of Crimes, Art 8 (2) (e) (vi)-1 (War crime of rape). ICC Elements of Crimes, Art 8 (2) (e) (vi)-1 (War crime of rape). ICC Elements of Crimes, Article 8 (2) (e) (vi)-6 (War crime of sexual violence) See, generally, Rome Statute, art. 8(2)(c)-(e). ICTY, Kunarac Appeals Chamber Opinion para. 58, See, also, ICTY, Limaj et al. (IT-03-66), para. 91. ICC Elements of Crimes, art. 8(2)(e) (vi)-2, para. 2 (war crime). See, also, art. 7(1)(g)-2, para. 2 (crime against humanity). ICC, Prosecutor v. Katanga, ICC-01/04-01/07-3436-tENG, Judgment pursuant to article 74 of the Statute, 7 March 2014, para. 976. ICC, Prosecutor v. Katanga and Ngudjolo, ICC-01/04-01/07-717, Decision on the confirmation of charges, 30 September 2008, para. 431.