Criticism , interpretation and suggestions for the male sexual crimes under the jurisprudence of international criminal justice

The present work has attempted to analyze sexual crimes and especially the crime of male rape. The international jurisprudence of international criminal Tribunals and the International Criminal Court has tried to qualify rape either as a crime of genocide in the form of serious bodily and physical injuries, even if not necessarily permanent (lett. b) art. 6 of the Rome Statute; or as a crime against humanity where there are elements of context and above all material elements that emerge from the definitions given by the ad hoc Tribunals and the elements of crimes; or even as a war crime in case it is implemented as a part of a political plan or design, or as part of series of similar crimes committed on a large scale. This behavior is rebuilt in a residual way compared to that of sexual violence, according to a gender specific relationship to speciem. The indication of the level of gravity of the crime is necessary for the relevance of sexual violence and rape as crimes against humanity that we will see in the next years from the panorama of international criminal law. * Senior Partner of the firm’s M&A, Master of laws (LLM) in the University College of London and Law Degree in the School of Law of the National & Kapodistrian, University of Athens. Contact: <ddiakopoulos@fdmalaw. com>. Fecha de recepción: 25/06/2018 Fecha de aprobación: 26/09/2018.

Abstract: The present work has attempted to analyze sexual crimes and especially the crime of male rape. The international jurisprudence of international criminal Tribunals and the International Criminal Court has tried to qualify rape either as a crime of genocide in the form of serious bodily and physical injuries, even if not necessarily permanent (lett. b) art. 6 of the Rome Statute; or as a crime against humanity where there are elements of context and above all material elements that emerge from the definitions given by the ad hoc Tribunals and the elements of crimes; or even as a war crime in case it is implemented as a part of a political plan or design, or as part of series of similar crimes committed on a large scale. This behavior is rebuilt in a residual way compared to that of sexual violence, according to a gender specific relationship to speciem. The indication of the level of gravity of the crime is necessary for the relevance of sexual violence and rape as crimes against humanity that we will see in the next years from the panorama of international criminal law. Resumen: Actualmente en el medio jurídico mexicano no existe un tratamiento específico relativo al procedimiento que deben seguir las sentencias dictadas en la acción de inconstitucionalidad por la Suprema Corte de Justicia de la Nación declarativas de una contradicción entre un tratado internacional y el texto de la Constitución Política de los Estados Unidos Mexicanos. La ruta crítica del presente texto es la siguiente: analizar los tratados internacionales y la acción de inconstitucionalidad; los medios de impugnación y los escenarios; la problemática de la acción de inconstitucionalidad frente a los tratados internacionales; y finalmente el futuro de la acción de inconstitucionalidad y los tratados internacionales.
Palabras clave: acción de inconstitucionalidad; tratados internacionales; normas generales; supremacía constitucional; contradicción. 10 Criticism, interpretation and suggestions for the male sexual... Dimitris Diakopoulos Revista de la Facultad de Derecho de México Tomo LXVIII, Número 272, Septiembre-Diciembre 2018 http://dx.doi.org/10.22201/fder.24488933e.2018. 272-1.67285 in the most recent criminal courts judiciary officers were not prepared to deal with the broadness and specificity of sexual offenses. The lack of proper staff, the lack of understanding of the law, and the general politicization of many affairs, have led to results that are highly controversial and criticized 15 . II. Criticism in the implementation of joint criminal operation as a means of incriminating the supporters of the crimes of sexual violence Although the joint criminal enterprise offers satisfactory opportunities to prosecutors in relation to the establishment of categories of crimes of sexual violence, its growing use has been criticized. Indeed, in some cases, the Tribunals have made an even wider understanding of the joint criminal enterprise 16 . The Special Court for Sierra Leone (SCSR), for example, has made this expanded interpretation, largely due to the fact that the cases before him concerned many defendants, many geographical areas and many accusations. The RUF case 17 is a prime example of the widening of the concept of a joint criminal enterprise in relation to that originally devised in the Tadić case. It replaced "the necessary intention to promote the purpose of the joint criminal enterprise" with negligence 18 . In addition, the Tribunal in RUF case ruled that it is not necessary for the actions of the participants in the joint 11 Criticism, interpretation and suggestions for the male sexual. criminal enterprise to cause the commission of a particular crime. It is sufficient for the accused to participate in the promotion of the common purpose.
The SCSL has further expanded the concept of a joint criminal enterprise in the AFRC case 19 , considering that the purpose of the criminal enterprise does not necessarily have to be criminal, since the means of its realization are criminal. In particular, the Court of Appeal stated that although the purpose of obtaining and exercising political power and control in the territory of Sierra Leone may not be criminal under the Statute, the acts in question as a means of achieving that purpose are criminal under the Statute 20 .
Thus, critics focus on the basis of two arguments. First, they assert that this form of responsibility makes individuals responsible for conduct that is far from the actions of the accused and therefore the principle of individual criminal guilt, by introducing a form of collective responsibility and guilt. It also fails to apply traditional criminal theories of punishment, including punishment, general and specific prevention. The second argument is based on the lack of an adequate basis in customary international law. If court judges convict as easily criminals on the basis of a joint criminal enterprise, this could lead to the decriminalization of international criminal law and its historical background in general, judging in particular a guilty of a crime which he did not necessarily commit 21 .
In support of this argument, it is often highlighted that the joint criminal society emerged for the first time at the International Criminal Tribunal for the Former Yugoslavia (ICTY) in the 12 Criticism, interpretation and suggestions for the male sexual... Dimitris Diakopoulos Revista de la Facultad de Derecho de México Tomo LXVIII, Número 272, Septiembre-Diciembre 2018 http://dx.doi.org/10.22201/fder.24488933e.2018. 272-1.67285 Tadić case 22 of appeal and not in the case law of the Second World War courts and the case law of the domestic courts. However, it is equally true that international criminal law is a constantly evolving field in which efforts are being made to bring together the different main legal systems and to justify the most harsh international crimes, with all the difficulties that this implies 23 .
It is indeed true that international crimes occur during chaotic situations: wars, massive violations, extensive collapse of structures and public order. Proof of the individual responsibility of an accused when such conditions prevail is a really difficult matter. For example, David Cohen argues that the crimes committed by Germans and Japanese during World War II, as opposed to common crimes perpetrated by a single perpetrator or group of people, were the result of systematic action by massive and complex organizations 24 . Thus, the widespread interpretation of the joint criminal enterprise, which has been resorted to by courts for the prosecution and punishment of sexual offenses, is perceived as exemplary of justice in terms of human rights, i.e. by targeting the victim and by using some of the most important interpretative methods of human rights law 25  rights guaranteed by the Conventions in a way that responds to changing circumstances or ensures that it is practical and effective. A former president of the European Court of Human Rights has pointed out that: "the object and purpose of human rights conventions can often lead to a wider interpretation of individual rights" 26 . Ad hoc criminal tribunals have, for example, used the teleological aim of protecting human dignity in order to broaden the definition of rape crime, and, as discussed above, have made a broad interpretation of even the Convention against torture 27 .
However, when an International Criminal Court (ICC) is set up, it must strictly observe the general principles of criminal law, and in this case the principle of fault. This is dictated by both the need to safeguard the fundamental rights of the accused 28 and the need to safeguard the prestige and credibility of international criminal justice and the legalization of international criminal law as an impartial and effective justice system 29 .
As court judge Hunt has commented on the broader interpretations of international criminal justice judgments, decisions that give little meaning to "the rights of the accused will leave a mark on the reputation of this Tribunal" 30 . That is why it is proposed to limit the theory of joint criminal enterprise. It should be III. Ineffective investigations and omissions in the prosecution of crimes of sexual violence before the international criminal Tribunals Although the recognition of sexual offenses by the post-war international military courts was very limited, women's and men experiences in wartime began to receive increasing attention in 1990s 32 . In this, helped the contribution of feminists to ensure that rape and other sexual abuse in time of war were effectively prosecuted before ad hoc criminal tribunals 33 .
However, notwithstanding the remarkable steps in this direction, especially during the last few years, it has also become apparent that in many cases of crimes of sexual violence, inadequate investigations and prosecutions were carried out, despite the really reliable and sufficient evidence, which still resulted and the complete absence of these offenses by procedures 34  observed the tendency on the part of judges to demand the satisfaction of a high level of evidence in these cases in relation to other cases. One of the most prominent examples is provided by the case files before the ICTR. In many cases, the ICTR has proved inadequate as a result of the lack of basic tools such as the lack of female researchers and researchers with relevant experience, lack of political will by the investigators of crimes of sexual violence, the misconception of a portion of staff of the Tribunal that there is no need to collect evidence of rape as there was a belief that men would never come to talk about them 35 .
One of the most typical examples of the lack of sufficiently substantiated indictments is the Akayesu case. The trial began in January 1997 on the basis of the crimes he was charged with in his arrest: direct responsibility for genocide 36 , participation in genocide, genocide, humanity's murder and murder, and war crime murder 37 . Shortly after the trial began, a witness was summoned to testify for the murders of her family members. In her testimony, she reported the rape of her six-year-old daughter 38 , whom she had never been told by the Prosecutor's Office to testify, as she added, had heard that other girls had been raped at Akayesu's office. There was another witness testimony, which was routed to rape of girls committed by the community police and Interhamwe at the community bureau, in the presence of the accused. In view of the above, the Tribunal was forced to postpone the case for May 1997 39 . In the context of these developments, the Prosecutor has been forced to amend the indictment to include three new categories: rape and other inhumane acts as a crime against humanity and war crimes of personal dignity, and in particular rape, degrading treatment and abuse lewdness 40 .
In the footsteps of Akayesu, a number of amended indictments have been brought before the ICTR, so as to include rape and other forms of sexual violence 41 . Considering only the number of accusations of crimes of sexual violence, one might have the optimistic view that rape victims eventually gained effective access to justice 42 . Indeed, more that half of the indictments issued by the ICTR in the period 1995-2002 included accusations of sexual violence 43 . However, a detailed analysis of the trend in the prosecu-38 Van Schaack, B., "Engendering genocide: Akayesu and the affirmation of genocidal rape", in Hurwitz D.R., et al. ( 45 . The reason is, according to the report, that deposits are the "Gordi's Link" to the work of the Prosecutor, both because of the need for sufficient decisionmaking and because of the difficulty of finding out peas 46 . According to the report, the difficulty of rejecting witnesses is due to the questioning of NGOs and men victims in relation to the Court's real capacity to proceed with the prosecution of sexual violence 47 . Even after Akayesu, tribunal judges continued to keep a "silent fish" on the issue of investigating sexual violence complaints or "evidence of sexual violence was held in obscurity by the Prosecutor's office, in the context of a specific strategy defined by 44 Maystre, M., Rangel, N., "Analytical and comparative digest of the ICTY, ICTR and SCSL jurisprudence on international sex crimes", in Bergsmo, M., Butenschøn Skre, A., Wood E.J., (eds.), "Understanding and proving international sex crimes", op. cit., pp. 512ss. 45  the Prosecutor" 48 . In the case of Serushago 49 , for example, rape cases were withdrawn from the indictment to be replaced by other accusations which gave "men victims and (…) the impression that crimes of sexual violence are not treated with the same quality of seriousness and importance as other crimes (...)" 50 .
One of the most typical cases is the Cyangugu case 51 . In this case, two class witnesses filed before the Court for acts of sexual violence that were not included in the indictment and for which they also stated that they had not been summoned to testify. In the face of this development, the coalition for men human rights in conflict situations took the initiative to seek an amicus curiae hearing before the Court, so that the Prosecutor could amend the indictment and include charges of sexual violence 52 .  The Prosecutor, stating his opposition, argued that it was at the discretion of the Public Prosecutor's Office concerning the accusations for which he was prosecuted and that he would in any case intend to introduce these categories but at a later stage 53 . The Tribunal not only denied the NGO's proposal, but ruled out the introduction of evidence of crimes of sexual violence 54 , stating that allowing such evidence could have the effect of prejudicing the rights of the accuse. Also in Semanza case 55 , four men filed before the Tribunal that they had been rushed and although the Tribunal actually found rape to have taken place, the ICTR ruled that the accused is not guilty of rape as a crime against humanity, considering that the indictment was unclear as to the date, place and timing of the crimes.
In Kajelijeli case 56 , the Tribunal also released the accused from all accusations of rape and sexual violence because of insufficient evidence to prove the relevant charges. For the rape category as a crime against humanity 57 , the Tribunal found that the prosecution had failed to show beyond doubt that the accused was individually responsible for planning, instigating, ordering, committing, encouraging or instigating planning, preparation or execution of rape 58 . 53  Regarding the superior's responsibility, the Tribunal found that the Interahamwe members committed the majority of the rape when Kajelijeli was not present, while the Tribunal did not show the evidence that the accused had ordered the rape 59 . The ICTY has many more cases of Prosecutor's mistakes. In the Lukić case, during the investigation of the accused 60 , many men complained that they had been sexually abused by him 61 . 60 See also art. 19(3) from ICC: "In proceedings with respect to jurisdiction or admissibility, those who have referred the situation under article 13, as well as victims, may also submit observations to the Court. ". Note that article 15(3) refers to "representations" by victims, while article 19 refers to "observations". The Statute does not define either term or distinguish one from the other. See also: Rule 50 (providing the procedure for article 15) and Rule 59 (providing the procedure for article 19) both speak of a victim's right to provide "representations" and both require such representations to be submitted in writing. At the time, the Prosecutor, Carla del Ponte, did not include any charges of sexual abuse in the indictment 62 , basing her decision on the fact that she was compelled, due to a timetable set by the Tribunal, to complete the cases as soon as possible 63 . He believed that crimes of sexual violence would lead to delaying the trial 64 . The Prosecutor who took office immediately after Del Ponte's term of office, trying to correct this omission, filed a request to amend the indictment to include accusations of sexual abuse 65 .
Although there was evidence of "very serious crimes" 66 , the Tribunal rejected the request on the grounds that the inclusion of new categories would lead to undue delay in the proceedings, while pointing out that there is no question of judicial error in the present circumstances 67 . A similar issue arose in another case before the SCSL this time in the CDF case 68 . As discussed above, 62  the Statute of the Special Court, like the Rome Statute, includes a bunch of gender-based crimes as crimes against humanity and war crimes 69 , while explicitly requiring "due attention" to be given to the employment of prosecutors and researchers with experience in grievous crimes 70 . However, the Prosecutor's Office omitted any charges in respect of these crimes in the original indictment against the three CDF leaders 71 . Although the supplementary investigation carried out by the Prosecutor, proving evidence of the submission of men to various forms of sexual violence 72 , the Tribunal has argued that the addition of new categories would leaf to an unjustified delay in the trial and would undermine the right of accused in a fair and swift trial 73 . It should be noted that the Tribunal took this decision, after of course admitting that: "(…) it is fully aware of the importance of gender-based crimes in international criminal justice 74  The Prosecutor then attempted to admit evidence of sexual violence in relation to the crime against humanity of inhuman acts and war crimes of infringing life, health and physical or mental well-being which had been included in the original indictment 76 . The Tribunal also made a disappointing decision: it rejected the request by point in Africa out that the indictment did not report incidents involving sexual violence in support of the relevant categories and that the subsequent addition of such evidence would violate the rights of the accused 77 .
A special Panel for serious crimes in East Timor was formed, although providing a very small contribution to the prosecution of crimes of sexual violence 78 , mainly because most perpetrators could government also systematically refused to cooperate with the United Nations for this purpose, on the pretext that it intends to bring the perpetrators accountable to the national human rights Court in Jakarta. However cases, and especially thanks to the work of women's advocates for special panels 79 , there was a wealth of evidence of crimes of sexual violence, which included: rape, forced prostitution, forced marriages 80 and the sexual enslavement.
However, only in the Cardoso case rape was prosecuted as part of a broader framework of political violence, terrorism and oppression 81 , noting that the accusations against Cardoso were attributed to her by a female Prosecutor who led the survey of gender-specific crimes in special panels. Testimonies and other evidence of rape and concentration of men in detention centers where Indonesian police officers were systematically harasses, sexual slavery of men associated with the independence movement 82 , it is remarkable that they did not lead to trials for the punishment of perpetrators.
The indictments that were issued but not fruitful confirm these crimes and indicate that men were targeted because of their beliefs and their action on independence, making this fact not by accident but a weapon directed as political intimidation and oppression 83 . Apart from the difficulty in identifying the perpe- trators, supported by the East Timor government's reluctance to prosecute, the limited number of indictments that included crimes of sexual violence is also due to a lack of understanding of the concept of gender-based crimes by prosecutors who conducted the investigations 84 .
In one of these cases, the public Prosecutor appeared to accept the defendant's allegation that the 12-year-old male who confessed that he was raped, because, according to the Prosecutor, before leaving, he paid for his "services" the price of $2. Thus, the Prosecutor appeared, among other things, to ignore the fact that the male was of an age in which genuine consensus on a sexual act is not possible. It therefore seems that the tribunals are reluctant to amend the indictment to include persecution of sexual offenses or to include additional evidence because of the concerns raised about the defendant's right to a fair trial, accompanied by the need for effectiveness 85 . However, in some cases the ICTR has allowed the Prosecutor to amend the complaint in a number of cases, especially when the relevant Prosecutor's proposal is well documented at an earlier stage of the trial 86 . It is characteristic that the total number of indictments issued for gender-based crimes was only 8 out of 95, of which only one case, that of Cardoso, was at the stage of the hearing.

IV. Legal and judicial vacuum in violence against men
As has been noted, there is not a human rights text relating to sexual violence against men, while sexual violence against women and men oftentimes referred to UN decisions, contracts and other sources of human rights law. "(…) The international instruments containing the most comprehensive and substantive definitions of sexual violence exclude men from the very first page, incorporating and reflecting the assumption that sexual violence is a phenomenon associated only with men and girls (...)" 87 . Moreover, despite the wealth of information available, male victims are almost totally ignored by the important decisions adopted by the Security Council on sexual violence in armed conflict.
With regard to the statutes of international criminal tribunals, the fact that only the Statute of the SCSL and the ICC contains explicit reference to various forms of sexual violence other than rape, such as sexual slavery, forced prostitution and "any other form of sexual violence", is a serious legal issue 88 . This has often forced international criminal courts to classify sexual violence against men (for example, blows in the genitals), torture, forced labor, other inhumane acts, cruel and inhuman treatment as persecution etc., courts have made remarkable progress in their case-law on these crimes, and although in Rwanda, Former Yugoslavia and Sierra Leone, sexual violence against men was recorded and acknowled-  three cases that could only focus on sexual violence against men, they did not even lead to charges of sexual violence 89 . As noted, however, the ICT Statute already has an extremely expanded list of crimes of sexual violence, including forced sterilization, which crime elements define as "deprivation of biological reproductive capacity" 90 . Indeed, under this broad definition could be the most frequent incidents of sexual violence against men such as genital mutilation, sexual torture, and the ICTY will be able to issue a conviction for the crime against humanity referred to in article 7(1)(g) 91 . It should be noted that the ICC has taken some first steps in this direction by coping with a Court document in Kenya case on sexual violence 92 against men in the form of forced circumcision and the rape of a man in Bemba case 93 . More specifically, in Bemba case, the Prosecutor's Office included in their accusations rape committed against both women and men, and called not only women victims but also two men in positions of 89  authority who were victims of rape in order to testify at the trial. In Kenyatta case, the Prosecutor's Office included in the allegations acts of forced circumcision and mutilation of the penis of men regarded as supporters of the opposing political party 94 .
The case-law progress that may be made in the context of ICTR may also be based on previous case-law of ad hoc criminal tribunals 95 . The ICTR has given such a broad definition of sexual violence, including even acts that do not constitute physical contact 96 . The ICTR has also recognized that rape and sexual violence can be committed against men and women, although no one in Rwanda has been accused of sexual abuse of men. In conclusion, all the above obstacles, resulting from the socio-cultural context of the victims, the lack of understanding, knowledge and recognition of sexual violence against men, the ICC has an excellent opportunity to overcome them, learning from the mistakes of the past. In the recent conflict in Syria, there are extensive reports of incidents of sexual violence against men, particularly in the context of detention. It is an excellent opportunity for the Tribunal, if the Security Council mentions the case before it, since Syria has not signed the Rome Statute, to be accused of these crimes 97 .  In the wake of the judgment in Prosecutor v. Katanga, whose verdict is the most recent example of the Prosecutors Office failure to secure conviction for sexual or gender-based crimes 98 , the ICC Prosecutor's Office has released a policy paper on sexual and gender-related crimes, which confirms the commitment the latter to prosecute these crimes 99 . This document, as will be demonstrated by the following analysis, recognizing the challenges faced by international criminal justice with regard to these crimes, sets out objectives and policies to overcome these deficiencies and to develop the approach of the Court in relation to sex and crimes related to it, in the application of international criminal law.
The policy document, which is the result of a two-year internal and external consultation process 100 , is an important public commitment by the Prosecutor that its Office will address holistically the investigation and prosecution of gender-based crimes 101 . The perspectives for tackling gender and sexual violence will include gender mainstreaming across the Office's range of competences, from the analysis of criminal standards to administrative structures, particularly within the context of "gender-specific dynamics in a specific context". This will result in maximizing dissuasive 98  In its preamble, it goes on to define gender-based crimes by defining them as "those committed against persons, whether men or women, because of their gender and/or socially-constructed gender roles. Gender-related crimes are not always manifests as a form of sexual violence. They may include non-sexual attacks on women and girls, men and boys because of their sex (...)" 102 . Below, it does not refer to the gender dimension adopted by the policy document. Apart from the importance of the distinction between the social and biological sex proposed by the document, these reports are of particular importance, including men, as an important step in the fight against the impunity of sexual violence, as violence against men has traditionally ignored and is therefore largely unpunished.
The document begins by reaffirming once again that it "pays particular attention" to sexual and gender violence. It adds not that the Prosecutor's Office believes that all crimes of the ICC's jurisdiction 103 are likely to be gendered. In this context, commit these crimes by persecuting them whenever they can be taught sufficient evidence to allow it. Thus, whenever it judges that "there is sufficient evidence to support (...) the charges" for sexual and gender-based crimes, the Prosecutor's office assures that it will be prosecuted 104 . It will prosecute sexual and gender-based crimes "as crimes per se" as well as "other crimes of ICC jurisdiction, for example by persecuting rape as torture, persecution and genocide (…) it stresses the importance of article 21(3) of the Statute because it requires the application of the Statute and its interpretation to be in accordance with internationally recognized human rights, without any discrimination on grounds of inter alia gender or other circumstances (...)" 105 .
An important recognition of the new policy paper is the adoption of a new approach to evidence. As discussed above, accusations of sexual violence before international criminal trials have often failed, not because of problems related, for example, to the evidence of international crimes or to the choice of the appropriate form of liability of the accused.
It is undisputedly true that researchers and prosecutors face particular challenges when dealing with victims and witnesses of sexual violence 106 , but these can be addressed through appropriate training and specialization. The ICTR review committee's conclusion on sexual violence is that low levels of convictions for sexual violence crimes in ICTR are due not to the lack of evidence-as rape victims and witnesses were available-but more to lack of understanding, specialization and training with regard to obtaining the necessary evidence to support its decision 107 . Experience from other criminal courts has shown that the fundamental issue is the ability to recognize sexual violence, the determination and approximation of victims with respect and discretion, the way in which interview and the taking evidence are based, the foundation and substantiation of the case and the choice of the most appropriate form of liability, as well as the presentation of the case to court judges, who will fully judge the criminal responsibility. The new political document seems to have incorporated these fundamental issues. Some of the most important areas of reform, as defined by the policy document, relate to the overall strategy of investigation and prosecution, which has the potential to positively influence the Prosecutor's work, even in non-sexual cases. An example is the abandonment of the focused research strategy for the sake of more in-depth openness "(...) so that more evidence from different sources can be collected (...)". This emphasis on the different and new sources of evidence reflects the challenge of the Prosecutor's Office regarding the extent to which this should be based so much on witness testimonies. In the speech of Prosecutor Fatou Bensouda in the presentation of the policy document, he said that the Prosecutor's Office: "(…) has decided to change the strategy not only by looking at witness statements but also by documenting evidence such as hospital records and using forensic strategies investigations as a new way of collecting the evidence we need (...)" 108 .
The policy paper states that: the office is aware that victims of sexual and gender violence may face additional risks of discrimination, social stigma, exclusion from their families and the community, bodily harm, or other retaliation, In order to minimize their exposure and potential recurrence, the Office will strengthen its efforts to collect other forms of evidence, where available, including empirical surveys and reports, and other reliable data provided by States, UN, transnational and non-governmental organizations, and other trusted sources. However, this reference is of particular value for another reason. Recognition by Prosecutor's Office of the likelihood that the victim will experience the trauma again during his testimony 109 signals the Office's greatest turn in paying particular attention to the individual "personal circumstances" of the victims 110 . It adopts a model centered on the victim, sensitized to the needs of the latter 111 . It therefore recognizes that one instrumental focus of the victims jeopardizes the provision of justice to victims of sexual and gender-based crimes and undermines the possible remedial value of persecution 112 . Evidence of difficulties will also be addressed through increased use of gradual prosecutions, investigations of which will start from the lowest to the highest level, and the cultivation of costly and trustworthy witnesses.
However, the policy document recognizes another factor that has been dealt with by international criminal justice and has even contributed to the forfeiture or inability to justify the charges. These are forms of responsibility. In the policy document, Prosecutor's Office declares itself ready to reinforce the possibility of issuing convictions against the administrative and military superiors and to accuse the basis both of article 25 of the ICC Statute and of article 28 113  they are accessory to the principal crimes committed by other perpetrator/s. The difference is however that in respect of the other Modes of Participation there needs to be a positive act or, at least, a certain level of contribution to the commission of the principal crime (...) superior responsibility is rather characterized by inaction/non-action of the superior. Despite this fact, there have been strong proponents for an interpretation of that superior responsibility should be interpreted as a Mode of Participation (...)". Orić Prosecution Appeal Brief, 18 October 2006, par. 162) the criminal responsibility of the superior is limited to his or her own failure to act with regard to, or in relation to, the "principal crime". In accordance with this interpretation, the superior is convicted: "(...) not for the "principal crime", but merely for his or her own failure to act or. This interpretation does evaluate the level of responsibility, not only to the gravity of the superior's own failure, but also to the gravity of the "principal crime". The Trial Chamber did however stress the connection to the gravity of the principal crime in the following: "(...) the imposition of responsibility upon a commander for breach of his duty is to be weighed against the crimes of his subordinates; a commander is responsible not as though he had committed the crime himself, but his responsibility is considered in proportion to the gravity of the offences committed" ( 409. "(...) "authority and control" is a somewhat broader concept than "effective command and control" according to Fenrick: "(...) the definition and the distinction between these terms was addressed by the ICC in the Bemba case, where it was concluded that: "article 28(a) of the Statute refers to the terms "effective command and control" or "effective authority and control" as applicable alternatives in situations of military commanders strictu sensu and military-like commanders. In this regard, the Chamber considers that the additional words "command" and "authority" under the two expressions has no substantial effect on the required level or standard of "control" (...) in this context, the Chamber underlines that the term "effective command" certainly reveals or reflects "effective authority". Indeed, in the English language the word "command" is defined as "authority, especially over armed forces", and the expression "authority" refers to the "power or right to give orders and enforce obedience" (...)". Prosecutor v. Bemba, ICC PT Ch. II, Decision Pursuant to article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor against Jean-Pierre Bemba Gombo, 15 June 2009, parr. 412-413. According to Ambos: "(...) further stresses that "it should be clear now (...) that the "should have known" standard must be understood as negligence and that it, therefore, requires neither awareness nor considers sufficient the imputation of knowledge on the basis of purely objective facts (...) a specific comment as to this point with regard to the Bemba confirmation decision. He thus points out that both of these standards ought to constitute a negligence standard and that it would be beneficial for the ICC to apply a restrictive interpretation of the "should have known"-standard in order to bring it closer in line with the "reason to know" standard (…) the Appeals Chamber recalls that the ICTR Appeals Chamber has on a previous occasion rejected criminal negligence as a basis of liability in the context of command responsibility, and that it stated that "it would be both unnecessary and unfair to hold an accused responsible under a head of responsibility which has not clearly been defined in international criminal law (…)". The Appeals Chamber expressly endorses this view". Prosecutor v. Blaškić, ICTY A Ch., 29 July 2004, par. 63. In the Orić case: "(...) the Trial Chamber furthermore formulated a normative yardstick in order to measure whether the superior has fulfilled his or her duty to prevent: "first, as a superior cannot be asked for more than what is in his or her power, the kind and extent of measures to be taken ultimately depend on the degree of effective control over the conduct of subordinates at the time a superior is expected to act; second, in order to be efficient, a superior must undertake all measures which are necessary and reasonable to prevent subordinates from planning, preparing or executing the prospective crime; third, the more grievous and/or imminent the potential crimes of subordinates appear to be, the more attentive and quicker the Office will specifically ensure that it will make more extensive use of the provisions on seniority liability, in accordance with article 28,"(…) in order to encourage military commanders and civilian officers to effectively deal with the commission of these imes by their forces or subordinates" 114 . The Prosecutor's Office also makes clear that it will pay particular attention to the possible use of evidence models to substantiate the accused's knowledge the superior is expected to react; and fourth, since a superior is duty bound only to undertake what appears appropriate under the given conditions, he or she is not obliged to do the impossible (.. he Chamber considers that in the latter type of situation, two kinds of scenarios are distinguishable (...) if the risk of bringing about the objective elements of the crime is substantial (that is, there is a likelihood that it "will occur in the ordinary course of events"), the fact that the suspect accepts the idea of bringing about the objective elements of the crime can be inferred from: i. the awareness by the suspect of the substantial likelihood that his or her actions or omissions would result in the realization of the objective elements of the crime; and ii. the decision by the suspect to carry out his or her actions or omissions despite such awareness (...) ICC argued that: (w)ith respect to dolus eventualis as the third form of dolus, recklessness or any lower form of culpability, the Chamber is of the view that such concepts are not captured by article 30 of the Statute. This conclusion is supported by the express language of the phrase "will occur in the ordinary course of events", which does not accommodate a lower standard than the one required by dolus directus in the second degree (oblique intention) (...)"; Prosecutor v. Bemba, ICC PT. Ch., Decision Pursuant to article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, ICC-01/05-01/08-424, 15 June 2009, para. 360), that: "(...) the Pre-Trial Chamber concluded therefore that "the suspect could not be said to have intended to commit any of the crimes charged, unless the evidence shows that he was at least aware that, in the ordinary course of events, the occurrence of such crimes was a The fact that international criminal justice has to deal with sexual and gender-based crimes as a form of discrimination as perceived by human rights law has already been codified in the Rome Statute of the Tribunal, in article 21(3) 137 . At the same time, it is duty of the Court to ensure that the interpretation and application of the Rome Statute is compatible with international human rights law and free of stereotypes of a distinct nature. As several commentators have noted, "while it is reasonable that human rights law can not be used to define international crimes such as persecution, this law can certainly be used to help interpret, where the absence of international criminal case law is evident" 138 .
Persistent challenges can be addressed to a certain extent by the application of the fundamental principle of non-discrimination, encouraging international courts to develop an improved understanding of when, why and how sexual violence takes place during armed conflicts, helping them better interpreted, what forms of criminal responsibility can and should be used to prosecute these crimes, what is the best way to deal with these crime systems, helping them reach equal justice.

VII. Concluding remarks
In practice, the two international criminal tribunals have acknowledged that sexual violence can constitute a bunch of other additional crimes, including war crimes of torture 139  on personal dignity 140 , the crime against humanity not only of rape but also of sexual enslavement 141 , persecution, and the crime of genocide 142 . With regard to ICC, the statute of the latter includes specific gender-based crimes, such as rape, sexual slavery, forced prostitution, pregnancy and sterilization-on the basis of both war crime 143 and crimes against humanity 144 . As regards the crimes of genocide, the elements of crimes state that although rape is not listed as a form of genocide, the latter caused by acts of "serious physical or mental harm" 145 , including "acts of torture, rape, sexual violence, inhuman or degrading treatment" 146 . However, the process of joining an act of sexual violence in the formal legal arena may be a painful process of many victims 147 . Not only can they experience a tremendous psychological strain because they have to go ahead and tell the violations against it 148 , but they may be forced to confront it with the established gender bias and rape perceptions of the system itself responsible for providing justice.
Obstacles to the process are multiple: lack of effective cooperation between health care staff and legal system, structural and resource constraints on law enforcement, lack of forensic analysis and problems of the courts themselves. Poor cooperation between investigators and prosecutors and the consequent inability to prove or attribute accusations and finally lack of sensitivity to judicial proceedings that "reconstitute" the victim's trauma 149 . But besides the victims, researchers and prosecutors may in turn encounter specific challenges, as they promote a case of sexual violence through the legal system. Besides the victims, researchers and prosecutors may in turn encounter specific challenges, as they promote a case of sexual violence through the legal system. The often private character of rape 150 , for example, rarely offers the 148 Prosecutor v. Krstić, Judgment, IT-98-33-T, 2 August 2001, para. 616. In Prlić et al., Trial Chamber III found four out of six Accused guilty of some crimes, including rape, sexual violence, and looting on the grounds that the Accused could have reasonably foreseen that such crimes would be committed as a consequence of the implementation of the joint criminal enterprise, and that they nevertheless accepted and assumed that risk, including by taking no measure to prevent the commission of further crimes. For the first time, the ICC judges have enshrined that any question submitted to them, and therefore also those relating to the interpretation of war crimes, must be resolved only on the basis of the law of the founding Charter. And secondly because in providing an interpretation of the aforementioned clause, the judges of the Chamber of Appeal seem to have given greater weight to the possibility of enhancing the object and purpose of the Statute rather than safeguarding