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Published online by Cambridge University Press: 20 January 2017
In their contribution to the AJIL Symposium, Robinson and MacNeil remark that a prolific legacy of the International Criminal Tribunal for Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) is that “it is now commonsense that rape is and must be a war crime.” This line distills the complexity of the legacies of the tribunals regarding sexual and gender-based violence. On the one hand, it articulates the critical role of the tribunals in cementing the idea that sexual violence, hitherto largely relegated to indifference in international criminal law and policy frameworks, is worthy of international attention. Simultaneously, it encapsulates the ways in which the tribunals’ jurisprudence has been received globally to narrate a narrow conception of conflict-related sexual violence as a “weapon of war” or committed as part of “strategic” conflict-related goals. In fact, there is little that constitutes common sense about sexual violence in conflict, nor is it always, or even most predominantly, committed as a war crime, crime against humanity,or in pursuit of genocide as envisaged by international criminal law. Various studies suggest that sexual violence in war takes many forms and causalities with differentiation across and within conflict contexts.
1 Darryl Robinson & Gillian MacNeil, The Tribunals and the Renaissance of International Criminal Law: Three Themes, 110 AJIL 191 (2016).
2 Elisabeth Jean Wood, Variation in Sexual Violence during War, 34 Pol. & Soc. 307 (2006); Amber Petermanet al., Estimates and Determinates of Sexual Violence Against Women in the Democratic Republic of Congo, 101 Am. J. Pub. Health 1060 (2011).
3 Sara Kendall & Sarah M. H. Nouwen, Speaking of Legacy: Toward an Ethos of Modesty at the International Criminal Tribunal for Rwanda, 110 AJIL 212 (2016).
4 A full discussion of the advances in terms of defining individual acts of sexual violence is beyond the scope of this essay. Broadly, the tribunals omitted the requirement of consent, and eschewed the consideration of the victim’s character. In case law ICTR did not consider penetration to be necessary for sexual violence, while the ICTY did. For a discussion, see, Richard J. Goldstone, Prosecuting Rape as a War Crime, 34 Case W. Res. J. Int’l L. 277 (2002); Kelly Askin, Prosecuting Wartime Rape and Other Gender-Related Crimes under International Law: Extraordinary Advances, Enduring Obstacles, 21 Berkeley J. Int’l L. 288 (2003).
5 Rome Statute of the International Criminal Court, 17 July, 1998, UN Doc. A/CONF.183/9.
6 Louise Chappell, The Politics of Gender Justice at the International Criminal Court: Legacies and Legitimacy (2016).
7 International Criminal Court, Elements of Crime (2011).
8 Valerie Oosterveld, Gender-Sensitive Justice and the International Criminal Tribunal for Rwanda: Lessons Learned for the International Criminal Court,12 New Eng. J. Int’l & Comp. L. 119 (2005-2006).
9 Sexual Violence and the Triumph of Justice, United Nations International Criminal Tribunal for the Former Yugoslavia.
10 Catharine A. McKinnon, The ICTR’s Legacy on Sexual Violence,14 New Eng. J. Int’l & Comp. L. 101 (2008).
11 Sexual Violence and the Triumph of Justice, United Nations International Criminal Tribunal for the Former Yugoslavia.
12 It is noted that the tribunals have been particularly honest and self-critical regardingthe operational challenges surrounding prosecution of sexual violence, and it is clear that a key component of their legacy projects entails the distillation of lessons learnt. They have been less self-critical regarding their broader legacies and their claims to global justice for victims of sexual violence.
13 Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Vio-lations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States, UNSC Res. 955 (Nov. 8, 1994).
14 For an excellent discussion of narratives surrounding sexual violence as a weapon of war, see Maria Eriksson Baaz & Maria Stern, Sexual Violence as a Weapon of War: Perceptions, Prescriptions, Problems in the Congo and Beyond (2013).
15 UNSC Res.1820 (June 19, 2008).
16 Ministry of Defence et al., Sexual violence in conflict, U.K. Government.
17 Mary Robinson, Bringing Women to the Table to Address Sexual Violence, N.Y.Times (June 11, 2014, 11:53 AM).
18 Baron Serge Brammertz & Michelle Jarvis, Prosecuting Conflict-Related Sexual Violence at the ICTY (2016).
19 Chiseche Mibenge, Gender and Ethnicity in Rwanda: On Legal Remedies for Victims of Wartime Sexual Violence, inGender, Violent Conflict and Development (Dubravka Zarkov ed., 2008); Doris Buss, Rethinking ‘Rape as a Weapon of War’, 17 Feminist Leg.Stud. 145 (2009).
20 Dubravka Žarkov, The Body of War: Media, Ethnicity, and Gender in the Break-Up of Yugoslavia (2007).
21 Maria Eriksson Baaz & Maria Stern, Sexual Violence as a Weapon of War?: Perceptions, Prescriptions, Problems in the Congo and Beyond (2013).
22 Dara Kay Cohen, Rape During Civil War (2016).
23 Lindsay Stark & Alastair Ager, A Systematic Review of Prevalence Studies of Gender-Based Violence in Complex Emergencies, 12 Trauma Violence Abuse 127.
24 Peterman et al., supra note 2.
25 Kendall & Nouwen, supra note 3.
26 20 Years Challenging impunity, United Nations Mechanism for International Criminal Tribunals.
27 About the ICTY, United Nations International Criminal Tribunal for the Former Yugoslavia.
28 Frédéric Mégret, International criminal justice: a critical research agenda, in Critical Approaches to International Criminal Law: An Introduction (Christine Schwöbel ed., 2014).
29 United Nations Department of Peacekeeping Operations, Review of the Sexual Violence Elements of the Judgments of the International Criminal Tribunal for the Former Yugoslavia, The International Criminal Tribunal for Rwanda, and the Special Court for SIERRA Leone in the Light of Security Council Resolution 1820 (2009).
30 MacKinnon, supra note 10.
31 Rhonda Copelon, Surfacing Gender: Re-Engraving Crimes Against Women in Humanitarian Law, 5 Hasting’s Women’s L.J. 243 (1994).
32 Lucinda M. Finley, Breaking Women’s Silence in Law: The Dilemma of the Gendered Nature of Legal Reasoning, 64 Notre Dame L. Rev. 886(1989).
33 Nicola Henry, The Fixation on Wartime Rape: Feminist Critique and International Criminal Law, 23 Soc.& Leg.Stud. 93 (2013).
34 Ratna Kapur, The Tragedy of Victimization Rhetoric: Resurrecting the “Native” Subject in International/Post-Colonial Feminist Legal Politics, 15. Harv. Hum. Rts. J. 1 (2002).
Target article
Editors’ Introduction
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