Contextual Investigation and Prosecution of Sexual Violence Crimes
Morten Bergsmo (ed.), Thematic Prosecution of International Sex Crimes, Torkel Opsahl Academic EPublisher, April 2012, 189-206
474 Pages Posted: 10 Mar 2013
Date Written: 2012
Abstract
Sexual violence taking place during conflict or mass atrocities is usually part of a wider picture of complex victimization. Rape, sexual slavery, sexual mutilation, and other similar acts are often accompanied by, or intersect with, other prohibited acts. Further, seemingly gender-neutral prohibited acts may have been carried out in gender- specific ways or may have gendered outcomes. For these reasons, conscious contextualization of sexual violence within international criminal prosecutions is crucial: by pursuing investigations and prosecutions in which sexual violence is explored within the context of other genocidal acts, crimes against humanity or war crimes, both the serious nature of sexual violence and the potentially gendered nature of other crimes can be highlighted and understood. This chapter explores the value of pursuing the prosecution of sexual violence within charges of genocide, crimes against humanity or war crimes. It begins by arguing that there may be specific factual circumstances in which exclusive, or nearly exclusive, prosecutorial focus on sexual violence charges may be valuable. However, generally, sexual violence charges should be situated within a narrative explaining the multitude of violations in a given atrocity scenario. This approach is more reflective of the realities of those who suffered the sexual violence crimes: they are not only, for instance, survivors of rape, but also usually simultaneous victims of other serious acts such as pillage, cruel treatment or enslavement. Each violation has a place within the narrative. A comprehensive understanding of the violations helps to explain the depth of harm caused to the victims and, in turn, can and should inform sentencing. This chapter then turns to an exploration of two recent positive examples, within international and internationalized tribunals, of nuanced contextualization of sexual violence crimes. It concludes by discussing the need for heightened gender competence and gender expertise within all offices, whether international or domestic, focused on the investigation and prosecution of genocide, crimes against humanity and war crimes, as well as among counsel for victims and within judiciaries.
Keywords: sexual violence, international criminal law, genocide, crimes against humanity, war crimes
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