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Rape and Sexual Violence as Torture and Genocide in the Decisions of International Tribunals: Transjudicial Networks and the Development of International Criminal Law

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Abstract

International criminal tribunals established by the UN Security Council in the 1990s have been widely acclaimed as active participants in the modern system of dynamic criminal justice. One of their best known achievements is the prosecution of rape and sexual assaults. The International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) set an example for other tribunals to follow. By interpreting a variety of international laws, the community of international legal professionals has been able to shift the prevailing understanding of rape and sexual violence away from that of an “unfortunate byproducts of war.” Not only has the epistemic community of legal professionals been able to end impunity for these crimes, but case-law of international tribunals has become a basis for subsequent trials at quasi-international tribunals. Decisions of the tribunals have been instrumental in drafting the Statute of the International Criminal Court and can be regarded as an example of the formation of new international norms by means of judicial decisions.

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Notes

  1. For an analysis of international criminal justice responses to rape and sexual violence, see: Sexual Violence and International Criminal Law: An analysis of the ad hoc Tribunal’s Jurisprudence and the International Criminal Court’s Elements of Crimes. Women’s Initiatives for Gender Justice. September 2005. http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1326&context=facpubs. Accessed 7 November 2013.

  2. Prosecutor v. Charles Ghankay Taylor. Case No. SCSL 03-01-A. 26 September 2013.

  3. Prosecutor v. Anto Furindzija, Judgment. Case No.: IT-95-17/1-T. 10 December 1998. Para. 143.

  4. The 1984 UN Torture Convention defines torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.” (Article 1). Quoted in ibid, para. 159.

  5. Ibid, para. 138.

  6. Ibid, paras. 151–153.

  7. Ibid, para. 162. The definition was modified to include the following: “[Torture] consists of the infliction, by act or omission, of severe pain or suffering, whether physical or mental;

    1. (i)

      This act or omission must be intentional;

    2. (ii)

      It must aim at obtaining information or a confession, or at punishing, intimidating, humiliating or coercing the victim or a third person, or at discriminating, on any ground, against the victim or a third person;

    3. (iii)

      It must be linked to an armed conflict; and

    (iv) At least one of the persons involved must be a public official or must at any rate act in non-private capacity, e.g. as a de facto organ of a State or any other authority-wielding entity.” Ibid, para. 162. The last two requirements are jurisdictional.

  8. Prosecutor v. Kunarac, Kovac and Vukovic, Case No. IT-96-23&23/1, Judgment. 21 February 2001 [hereinafter Foca Trial Judgment]. Para. 467.

  9. The ICTY used the language of the UN Torture Convention when discussing customary status of the prohibition. The issue of “prohibited purpose” is viewed differently in the European Court of Human Rights. In the jurisprudence of the ECHR, it was stressed that, “The question whether the purpose of the treatment was to humiliate or debase the victim is a further factor to be taken into account, but the absence of any such purpose cannot conclusively rule out a violation of Article 3”, Van Der Ven v. the Netherlands, (Application no. 50901/99), para. 48, Judgment. http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-58041. Accessed April 5, 2013.

  10. Prosecutor v. Delalic, et al., Case No. IT-96-21. Judgment. 16 November 1998. [Herein after Čelebići Trial Judgment]. Para. 470.

  11. Prosecutor v. Kunarac, Kovac, Vukovic, Case No. IT-96-23&23/1, Judgment at para. 118 (June 12, 2002) [Foca Appeals Judgment], para. 153: “even if the perpetrator’s motivation is entirely sexual, it does not follow that the perpetrator does not have the intent to commit an act of torture or that his conduct does not cause severe pain or suffering.”

  12. Čelebići Trial Judgment.

  13. Prosecutor v. Kvočka et al, Case No. IT-98-30/1, Judgment. 2 November 2001.

  14. See ibid, paras. 141–151.

  15. Ibid, para. 561.

  16. Foca Trial Judgement, para. 654.

  17. ICJ Advisory Opinion Concerning Reservations to the Genocide Convention (1951). At 23. Available at http://www.icj-cij.org/docket/index.php?sum=276&code=ppcg&p1=3&p2=4&case=12&k=90&p3=5. Accessed April 5, 2013.

  18. Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, 2 September 1998.

  19. Amicus Brief Respecting Amendment of the Indictment and Supplementation of the Evidence to Ensure the Prosecution of Rape and Other Sexual Violence Within the Competence of the Tribunal, para. 12. http://www.iccwomen.org/publications/briefs/docs/Prosecutor_v_Akayesu_ICTR.pdf, Accessed 24 January 2013.

  20. Prosecutor v. Jean-Paul Akayesu, para. 437, para. 735.

  21. 1948 Genocide Convention, Article II: “…any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

    (a) killing members of the group;

    (b) causing serious bodily harm or mental harm to members of the group;

    (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

    (d) imposing measures intended to prevent births within the group;

    (e) forcibly transferring children of the group to another group.”// http://www.icrc.org/ihl.nsf/full/357?OpenDocument. Accessed April 5, 2013.

  22. The obvious distinction is that crimes against humanity apply to all persons irrespective of their belonging to a specific group.

  23. Prosecutor v. Jean-Paul Akayesu, paras. 733–734. See also, Prosecutor v. Niyitegeka, Case No. ICTR-96-14-T, Judgment and Sentence (May 16, 2003). Para. 416.

  24. Ibid, para. 732.

  25. Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-95-1-T, Judgement and Sentence (May 21, 1999), para. 109. See also, Prosecutor v. Kajelijeli, Case No. ICTR-98-44A-T, Judgement and Sentence (December 1, 2003), para. 815: “Trial Chambers of the Tribunal have held that what is ‘bodily’ or ‘mental’ harm should be determined on a case-by-case basis. They have held that ‘serious bodily harm’ does not necessarily have to be permanent or irremediable and that it included non-mortal acts of sexual violence, rape, mutilations and interrogations combined with beatings and/or threats of death.” See also, Prosecutor v. Stakic. Case No. IT-97-24-T. July 31, 2003. Para. 516.

  26. Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-95-1-T, Judgement and Sentence (May 21, 1999). Para. 110.

  27. Prosecutor v. Musema, Case No. ICTR-96-13, Judgement and Sentence (Jan. 27, 2000). Para. 158.

  28. Prosecutor v. Akayesu: Imposing measures intended to prevent births within the group (paragraph d): 507. For purposes of interpreting Article 2(2)(d) of the Statute, the Chamber holds that the measures intended to prevent births within the group, should be construed as sexual mutilation, the practice of sterilization, forced birth control, separation of the sexes and prohibition of marriages. In patriarchal societies, where membership of a group is determined by the identity of the father, an example of a measure intended to prevent births within a group is the case where, during rape, a woman of the said group is deliberately impregnated by a man of another group, with the intent to have her give birth to a child who will consequently not belong to its mother's group. For a more detailed discussion of the case, see, for instance, Askin (2003, 2005).

  29. See the documentary «Sexual Violence and the Triumph of Justice». ICTY. Available http://www.youtube.com/watch?v=HZ4EM6iiq0k. Accessed April 29, 2014.

  30. See, for example, the biography of Judge Odio-Benito (ICC): http://www.icc-cpi.int/en_menus/icc/structure%20of%20the%20court/chambers/the%20judges/Pages/judge%20elizabeth%20odio%20benito.aspx, Prosecutor Hollis (Sierra Leone Special Court): http://www.sc-sl.org/ABOUT/CourtOrganization/Prosecution/tabid/90/Default.aspx, Also important is the fact that the ICTY and the ICTR shared the same Chief Prosecutor until 2003.

  31. For an excellent overview of the specifics of rape and sexual violence prosecutions and the necessity to develop a gender strategy, see “Gender Strategy is not a Luxury for International Courts”. A Keynote Address by Patricia V. Sellers, Former Legal Advisor for Gender and Trial Attorney at the International Criminal Tribunal for the Former Yugoslavia (ICTY). http://www.wcl.american.edu/journal/genderlaw/17/2sellers.pdf. Accessed 5 April 2013.

  32. On the relationship between the ICTY and War Crimes Chamber in Bosnia, see Orentlicher (2010).

  33. DR Congo: Establishment of a Specialized Mixed Court for the Prosecution of Serious International Crimes Common Position Resulting from the Workshop Held in Goma on April 6–8, 2011. Human Rights Watch Press Release. 15 April 2011. Available at http://www.hrw.org/en/news/2011/04/15/dr-congo-establishment-specialized-mixed-court-prosecution-serious-international-cri. Accessed 29 November 2013.

  34. An expression of Anne-Marie Slaughter, quoted in Ajevski (2011), p. 78.

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Marochkin, S.Y., Nelaeva, G.A. Rape and Sexual Violence as Torture and Genocide in the Decisions of International Tribunals: Transjudicial Networks and the Development of International Criminal Law. Hum Rights Rev 15, 473–488 (2014). https://doi.org/10.1007/s12142-014-0322-6

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