Furthermore, it must be understood that vaginal penetration refers to the penetration, with any part of the aggressor's body or objects, of any genital orifice, including the labia majora and minora, as well as the vaginal orifice. This interpretation is in line with the conception that any type of penetration, no matter how insignificant, is sufficient for an act to be considered rape. This Court understands that rape is a form of sexual violence.257 138. Since at least 2001, international organizations and courts have identified consent as a central element of the crime of rape. Thus, in 2001 the International Criminal Tribunal for the former Yugoslavia (ICTY), in the case of The Prosecutor v. Kunarac, Kovac and Vukovic, observed that there was no definition of the crime of rape in international humanitarian law and ruled that lack of consent was itself a constitutive element of rape as a crime in international criminal law and that “force or the threat of force provides clear evidence of lack of consent, but force is not per se an element of rape.”258 139. In the case of MC. v. Bulgaria,259 in 2003, the European Court of Human Rights260 established key legal concepts regarding the issue of rape, which contributed significantly to the definition of rape in the Council of Europe Convention on preventing and combating violence against women and domestic violence (hereinafter “Istanbul Convention”) which was adopted in 2011.261 In the case of MC. Vs. Bulgaria, the European Court declared the international responsibility of the State for closing a criminal investigation into a case of sexual violence against a minor, of 14 years old, for “not finding evidence of the use of force or physical resistance during the assault". The European Court reasoned that “the authorities failed to consider all the circumstances that could have inhibited physical resistance on the part of the victim in this case, considering the particular vulnerability of a minor in cases of rape and the environment of coercion created by the aggressor". It also determined that the lack of consent should be the central aspect of the investigation and its conclusions, since "although in practice it may be difficult to prove the lack of consent in the absence of "direct" evidence of a rape, such as traces of violence or direct witnesses, the authorities must explore all the facts and decide based on an evaluation of all the related circumstances.”262 140. In its decision related to the case cited above, the European Court held that “the constant evolution of the understanding of the way in which victims experience rape demonstrated that victims of sexual abuse – especially underage girls – generally, do not put up physical resistance due to Doc. PCNICC/2000/1/Add.2 (2000), article 7 (1) g)-1., and article 8 (2) e) vi)-1. Available at: https://www.icccpi.int/sites/default/files/Publications/Elements-of-Crimes.pdf and Special Court for Sierra Leone, Prosecutor v. Issa Hassan Sesay et al., Judgment of March 2, 2009, case No. SCSL-04-15-T, paras. 145 and 146. This interpretation was also used by the Truth Commission in its report, which “understands rape as a form of sexual violence, which occurs when the perpetrator has invaded a person's body through conduct that has been caused the penetration, however insignificant, of any part of the body of the victim or the perpetrator with a sexual organ or of the anal or vaginal opening of the victim with an object or other part of the body. Such invasion must have occurred by force, or by threat of force or by coercion, such as that caused by fear of violence, intimidation, detention, psychological oppression or abuse of power, against that or another person or taking advantage of a coercive environment, or that has been carried out against a person incapable of giving free consent.” Cf. Report of the Truth and Reconciliation Commission, Volume VI, Chapter 1.5, page. 265. 257 Cf. Case of J. v. Peru, supra, para. 359, and Case of Women Victims of Sexual Torture in Atenco v. Mexico, supra, para. 182. See also, article 2 of the Belém do Pará Convention, and International Criminal Tribunal for Rwanda, Prosecutor v. Jean-Paul Akayesu, Judgment of September 2, 1998, case No. ICTR-96-4-T, para. 688. 258 Cf. Expert opinion of Dubravka Šimonović (evidence file, folio 11472), and International Criminal Tribunal for the former Yugoslavia, Kunarac et al. (IT-96-23 & IT-96-23/1-A), Judgment of the trial, case No. IT-96-23-T and IT-96-23/1-T, para. 129. 259 ECHR, Case of MC. v. Bulgaria, No. 39272/98. Judgment of December 4, 2003. In 2002, the Committee of Ministers of the Council of Europe indicated that national laws should criminalize any sexual act committed without consent, even if the victim shows no signs of resistance. Recommendation No. R (2002) 5 adopted on April 30, 2002, by the Committee of Ministers of the Council of Europe. Cf. Written version of the expert opinion of Miguel Cillero Bruñol, supra (evidence file, folio 11691). 260 261 Cf. Expert opinion of Dubravka Šimonović, supra (evidence file, folios 11472 to 11473). Cf. ECHR, Case of M.C. v. Bulgaria, supra, para. 181; Expert opinion of Dubravka Šimonović, supra (evidence file, folios 11472 to 11473), and Written version of the expert opinion of Miguel Cillero Bruñol, supra (evidence file, folio 11691). 262 46