56 Pages Posted: 16 Nov 2008
Date Written: 2003
Over a number of years, the International Criminal Tribunal for the Former Yugoslavia (ICTY) handed down several convictions for the mass rape of women during conflicts in former Yugoslavia. While these convictions are laudable, there are nevertheless still many failures to prosecute and acquittals for rape, particularly in the case of officers who may have authorized or allowed the rapes, but never directly committed the physical act of rape. Part of the problem lies in the liability theories that the ICTY used (and was statutorily allowed to use). The ICTY used theories of command responsibility and joint criminal enterprise to impose liability on officers and leaders for rapes committed by their subordinates, and the ICTY prosecutors encountered problems establishing proof of liability under these theories.
In this article, Richard Barrett and Laura Little argue that the crime of conspiracy to commit rape should be more broadly recognized in international criminal law, as it would be particularly appropriate in prosecuting and convicting the officers and leaders who are often the most culpable in mass rape cases. Recognizing the independent offense of conspiracy in the rape context may be a powerful additional deterrent to future occurrences of mass rape as an incident of war, as it would be a method of holding officers and leaders directly liable for agreeing to and facilitating the commission of the act of rape. Recognizing conspiracy to commit rape as an independent charge would also effectively deal with many of the proof problems facing prosecutors. Barrett and Little conclude the article by looking at possible consequences of recognizing conspiracy in rape trials, including ramifications for the International Criminal Court (ICC) and other international criminal tribunals.
Keywords: international law, criminal law, war crimes, international crimes, international criminal tribunals, international criminal court, international criminal tribunal for the former Yugoslavia, mass rape, command responsibility, joint enterprise, conspiracy, theories of criminal liability
JEL Classification: K14, K33, K40, K41, K42
Suggested Citation: Suggested Citation
Barrett, Richard Palmer and Little, Laura E., Lessons of Yugoslav Rape Trials: A Role for Conspiracy Law in International Tribunals (2003). Minnesota Law Review, Vol. 88, p. 30, 2003. Available at SSRN: https://ssrn.com/abstract=1301584