42 Pages Posted: 27 Feb 2017 Last revised: 29 Mar 2017
Date Written: February 25, 2017
It may not matter how educated or healthy a young girl is if she is daily subjected to violence without protection, kidnapped without rescue, raped without recourse, or murdered without justice. The rule of law problem is so pervasive in some developing countries that all the good NGOs do by providing food, education and health care is overshadowed by the violence that the most vulnerable populations face on a daily basis. Focus and funds should be shifted away from simply providing material aid (an incentive, or a “carrot”), and instead more attention should be given to establishing the rule of law by punishing those who fail to uphold it (a “stick”).
Many developing countries have well-written laws dealing with such issues as violence against women and children, bonded labor, property grabbing, and the general administration of justice, but a large swath of the most vulnerable part of the population (the poorest, the women, and the children) fail to receive protection or justice. No doubt, there is a rule of law problem.
The purpose of this article is novel. It provides a legal framework for that “stick” – to provide a framework in which the failure of government officials to enforce their countries' laws, particularly for the most vulnerable part of the population, could establish a prima facie claim for crimes against humanity. While the proposed legal framework could be applied to any rule of law issues, to give some context to the discussion, this article focuses primarily on problems of enforcing rape statutes. To overcome the biggest legal hurdle, this article sets forth reasons why a crime of an omission (a failure to act) can establish a crime against humanity.
From a pragmatic viewpoint, however, even if failure to enforce laws is a crime against humanity - so what? The ICC is struggling with a number of issues, including the problem of enforcement, so would any criminal charge really make an impact? I think so. The international attention brought upon an individual with a crime against humanity charge (or investigation) might send a strong message that the international community believes in the rule of law.
Many articles dealing with rule of law issues propose solutions based on the rule of law development assistance such as providing training, economic support or actual governance – in other words, offering carrots. Is there room for a stick? This article is unique in that it looks to international criminal accountability of law enforcement officials as a path to advance rule of law in developing countries.
Keywords: rule of law, international criminal law, international criminal court, crimes against humanity, human rights, sexual assault, rape
JEL Classification: K30, K33, K39, K40, K42, K10, K14
Suggested Citation: Suggested Citation
Goodno, Naomi, A Carrot or a Stick? Strengthening the Rule of Law with a Stick: Failure to Enforce Sexual Assault Laws as a Crime Against Humanity (February 25, 2017). University of Pennsylvania Journal of International Law, 2017 Forthcoming; Pepperdine University Legal Studies Research Paper No. 2017/7. Available at SSRN: https://ssrn.com/abstract=2923843