Radical rules: the effects of evidential and procedural rules on the regulation of sexual violence in war.

• Author: Aolain, Fionnuala Ni
• Position: Conceptualizing Violence: Present and Future Developments in International Law

"The horror of that moment," the King went on, "I shall never, never forget!"

"You will, though," the Queen said, "if you don't make a memorandum of it."(1)

The International Criminal Tribunal adjudicating war crimes committed on the territory of the former Yugoslavia has traversed unique thresholds since its creation.(2) It is the first international ad hoc tribunal since the Nuremberg trials; the first comprehensive criminalization of acts of violence committed during internal and external war deemed sufficiently abhorrent to warrant international regulation; it is a process which has sharpened the boundaries of international humanitarian law and is casting light on the murky shadows of sexual violence during warfare.(3) The Yugoslav conflict is exceptional because of the way in which violence against women has been widely exposed as a method and means of warfare, not ancillary to military objectives, but innately linked to them.(4) Much has been made of the media attention devoted to the sexual plunder of women during this conflict.(5) Equally, much energy was directed at ensuring that the substantive definition of criminal offenses in the Statute of the Tribunal(6) would adequately recognize the gravity of rape and sexual offenses against women.(7) The starting point of this Article is the inclusion of substantive legal recognition for the seriousness of sexual offenses committed against women during the Yugoslav conflict in the Statute of the Tribunal. Its examination, however, is not on the merits of these legal claims, but rather on the ancillary rules which support them.

The rules that support legal claims of sexual offenses are the Rules of Procedure and Evidence,(8) the existence of which is facilitated by Article 15 of the Statute of the Tribunal.(9) Little attention has been paid to the radical changes wrought by these Rules to the criminal adjudication of sexual offenses against women in the international legal arena.(10) This Article argues that substantive legal recognition of sexual offenses in their own right would have achieved very little, if the procedural mechanisms which apply to the conduct of criminal cases had not been subject to drastic re-evaluation. The rules of evidence which go to the trial of sexual offenses illustrate a chink of international recognition for the significance of process in the institutional treatment of gendered violence.(11)

Existing rules of evidence regulating the conduct of criminal trials concerning gendered violence have been subject to vocal and persistent criticism in many jurisdictions for their perpetuation of unstated social understandings regarding female and male sexuality.(12) Rape and sexual assault trials have been marked by the lack of female perspective in the courtroom and the application of a male standard.(13) As Susan Edwards points out: "It is in the rules of evidence and procedure that we find the reproduction of the precipitating construction of female sexual behaviour that makes a charge of assault by the complainant difficult to sustain."(14) The traditional doctrines of defense reflect this, i.e. that the woman should fend off a violent attack "like a man" or be considered unchaste and thus unworthy of legal protection for violation.(15) The "fresh complaint" doctrine reflects the difficulty for women in making a valid claim; the myth that the truly virtuous woman would immediately complain of any sexual violation.(16) Such views clearly do not account for the fear and reluctance of many women in identifying a personal violation, who publicly fear the prejudice, hostility and disbelief which would follow.(17) The Tribunal faced a dual task. First, to respond to the lacuna in legal definition of the forms of defilement against women as a matter of law during warfare. Second, the task of ensuring that the courtroom experience would be one that was fair to the victims of sexual violence while protecting the due process rights of any accused charged with sexual offenses.

This Article, examines how far international law has moved in its treatment of gendered violence as a result of the creation of the War Crimes Tribunal. Part I of this Article examines the Statute itself, outlining the basis for prosecuting sexual offenses. Part II looks to the general rules of evidence and procedure which directly concern the protection and treatment of witnesses and victims. Part III reviews the specific rules concerning sexual offenses contained in the Statute of the Tribunal. Initially, Part III analyzes whether sophisticated and "victim sensitive" procedural mechanisms will reshape general understandings of the nature of gendered violence during armed conflict. This section further assesses whether rejection of traditional rules associated with the proof of sexual offenses such as the corroboration requirement, cautionary instructions and the dismissal of evidentiary rules related to prior sexual conduct by the victim--which placed the violated woman as much on trial as the defendant--have assisted in re-evaluating the status of violence directed at women under international criminal law. The conclusion posits the view that these procedural innovations may have the potential for reshaping cultural and legal attitudes towards the occurrence of sexual violence during armed conflict.

1. THE STATUTE OF THE TRIBUNAL: NEW LIFE FOR THE LAWS OF WAR

   Underpinning any discussion of the Rules of Procedure and Evidence is an understanding of the substance and structure of the Statute of the Tribunal. Prior to its formalization, as accounts of systematic and gross gender violations emerged from the conflict in the former Yugoslavia, the lack of comprehensive legal sanction for sexual violence during warfare was apparent.(18) There exists an ongoing academic debate as to the international legal status of violence against women, and specifically that of rape under the laws of war.(19) For example, some would argue that rape by recognized combatants had been technically prohibited by the laws of war prior to the positivist enunciation of the rules of waging war under the Geneva Conventions and the Additional Protocols.(20) The specific prohibition for the crime of rape is found in the Fourth Geneva Convention,(21) and at Articles 76(1) and 85 of the First Protocol Additional to the Geneva Conventions.(22) Its prohibition under the Geneva Conventions defines rape as an offense against honor rather than an offense of a distinctly violent and sexual nature.(23) Thus, not only have all-encompassing sexual crimes against women been excluded from legal prohibition under the laws of war, but when included they have been facets of male status violation.

   What has concerned many observers is the low status of prohibitions for sexual violations within the hierarchy of humanitarian law offenses.(24) Many predicted that ensuring accountability for the atrocities committed against women would require creative interpretation to allow crimes of sexual violence to fit the category of "grave breaches" or serious offenses,(25) which give rise to international jurisdiction under the Geneva Conventions.(26) Thus, commentators such as Theodor Meron argue that "[u]nder a broad construction, Article 46 of the Hague Regulations can be considered to cover rape ...."(27) Though not specifically included as a "grave breach" of the Geneva Conventions, rape was a potential candidate on the basis that the list was not intended to be exhaustive and the gravity of some sexual offenses merited their inclusion under a liberal construction of existing jurisprudence.(28) In the same vein, others argued that rape might be part of the proscribed tactics covered by Article II of the Convention on the Prevention and Punishment of the Crime of Genocide, and a potential infraction of the customary laws of war.(29)

   Such an approach would have achieved little. It was vital that this International Tribunal acknowledge and incorporate the gravity of sexual offenses in their own right into its substantive law. Subsuming female-centered violence into existing categories was not enough, as that would fail to concede the specific nature, effect, and rationale of these offenses. It was of paramount importance that the norms transgressors were to be held to by the Tribunal did not exclude the particular experiences and indignities suffered by women in war.

   The Statute of the Tribunal has gone a considerable way to achieve that end. Its general provisions further leave room for crimes of a gendered nature to be read into its diffuse categories. Article 2 outlines the power of the Tribunal to prosecute "grave breaches" of the 1949 Geneva Conventions.(30) Torture and inhuman treatment are prohibited under Article 2(b).(31) Concurrent jurisprudence from the European Convention system has acknowledged rape to constitute "inhuman treatment."(32) Rape may unequivocally violate the international prohibitions against "torture" under certain circumstances, specifically where the act is carried out by an official with a political or public purpose.(33) Article 2(c) also proscribes prosecution for "wilfully causing great suffering or serious injury to body or health."(34) This language is expansive enough to include various kinds of gendered violence which have caused physical and mental anguish to women during the conflict.

   Article 4 of the Statute is concerned with the prosecution of the crime of genocide.(35) For the first time, the relationship between violent sexual acts directed at the women of a national, ethnic, racial or religious group and the destruction of that entity are recognized.(36) This provision is legal acknowledgment that sexual violence in war serves a functional purpose in destroying an opponent's culture by defiling an essential component of society,(37) its women (as symbolic of cultural and bodily integrity) and its childbearers (as its future). This Article creates grounds for the...