Prosecuting Sexual Violence in the Ad Hoc International Criminal Tribunals for Rwanda and the Former Yugoslavia

Abstract:     
Security Council Resolutions 1503 (2003) and 1534 (2004) provide that the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) are to complete their proceedings by the end of 2010. These Tribunals, established by the Security Council acting under Chapter VII of the Charter of the United Nations, were the first international criminal tribunals since the Nuremberg Tribunal and International Military Tribunal for the Far East established at the end of World War II and ushered in a new phase in international criminal law in which such ad hoc tribunals are increasingly being seen as viable options for post-conflict societies. Thus, we now have ad hoc tribunals that are either hybrid or completely international for Cambodia, Sierra Leone, Lebanon and Timor Leste as well as the permanent International Criminal Court. The age of international criminal accountability has, it might be said, arrived. To what extent, however, are these tribunals making individuals accountable for the widespread sexual violence that often (if not always) occurs in times of armed conflict and genocide? This paper explores the extent to which these tribunals making individuals accountable for the widespread sexual violence against women and girls that often (if not always) occurs in times of armed conflict and genocide. In particular, the paper tries to asses the extent to which feminist hopes for justice for women victims of sexual violence have been met by the Tribunals.

In this task, the paper takes a distinctly critical approach and focuses not only on the doctrinal advances made by the Tribunals (which have been vast) but also on the operationalization of those advances (which has been less impressive). This commitment to look not only at positive law but also at law in practice and to critically appraise the dissonances that appear has long been an important part of feminist legal methodology. In the analysis that follows it becomes clear that many of the difficulties that have arisen in relation to the prosecution of sexual violence before these tribunals are familiar to feminist legal theorists as they tend to have also arisen in adversarial domestic criminal justice systems. This calls into question the extent to which we should be celebrating these tribunals when seen through a feminist lens. In particular, it ought to cause us to question the extent to which a healthy norm transfer is occurring between the domestic and the international: to what extent are feminist lessons learned domestically transferred to the international sphere, and what kinds of lessons about prosecuting sexual violence will be transferred from the international proceedings to the reconstituted justice systems in post-conflict jurisdictions?

Keywords: sexual violence, feminist legal theory, international criminal law, rape, genocide

JEL Classifications: K19, K33, K41, K49

Working Paper Series