Reconsidering the theoretical accuracy and prosecutorial effectiveness of international tribunals' ad hoc approaches to conceptualizing crimes of sexual violence as war crimes, crimes against humanity, and acts of genocide.

• Author: Carson, Kimberly E.
• Position: Introduction to I. The Evolving Status of Sexual Violence in International Law B. Prosecution of Crimes of Sexual Violence by International Tribunals 1. Sexual Violence Jurisprudence at the ICTY and ICTR, p. 1249-1273

Introduction I. The Evolving Status of Sexual Violence in International Law A. Proscription of Sexual Violence in Modern International Humanitarian Law B. Prosecution of Crimes of Sexual Violence by International Tribunals 1. Sexual Violence Jurisprudence at the ICTY and ICTR a. Defining Crimes of Sexual Violence at the ICTY and ICTR b. Prosecuting Sexual Violence as a War Crime, Crime Against Humanity, and Act of Genocide at the ICTY and ICTR i. War Crime ii. Crime Against Humanity iii. Genocide 2. Sexual Violence Jurisprudence at the ICC a. Establishing a Platform for Sexual Violence Prosecutions at the ICC b. Charging Crimes of Sexual Violence at the ICC. 3. Prosecutorial Effectiveness of Sexual Violence Prosecutions at the ICTY, ICTR, and ICC a. Assessing Prosecutorial Effectiveness at the ICTY and ICTR b. Assessing Prosecutorial Effectiveness at the ICC c. Best Practice Recommendations for Effective Sexual Violence Prosecutions II. "The Politics of Naming": Conceptualizing Sexual Violence as a War Crime, Crime Against Humanity, and Act of Genocide in International Law A. Conceptualizing Sexual Violence as a War Crime B. Conceptualizing Sexual Violence as a Crime Against Humanity and Act of Genocide III. Sexual Violence Must Be Named, Conceptualized, and Prosecuted as a Crime Against Humanity and Form of Genocide in Order to Advance the Protection of Women's Human Rights at the ICC Conclusion Naming sexualized violence as a weapon of war makes it visible--and once visible, prosecutable. What happened to men in the past was political, but what happened to women was cultural. The political was public and could be changed; the other was private--even sacred--and could not or even should not be changed. Making clear that sexualized violence is political and public breaks down that wall. It acknowledges that sexualized violence does not need to happen. When masculinity is no longer defined by the possession and domination of women, when femininity is no longer about the absence of sexual experience or being owned, then we will have begun. (1) INTRODUCTION

"I was sleeping when the attack on Disa started," explained a female refugee from Western Darfur, interviewed by Amnesty International from a Sudanese refugee camp in Chad in 2004. (2) She continued:

I was taken away by the attackers, they were all in uniforms. They took dozens of other girls and made us walk for three hours. During the day we were beaten and they were telling us: "You, the black women, we will exterminate you, you have no god." At night we were raped several times. The Arabs guarded us with arms and we were not given food for three days. (3) Her testimony is representative of hundreds collected from other women in the region describing attacks on civilians of the Fur, Masalit, and Zaghawa ethnic groups carried out by the Sudanese government-sponsored militia in Darfur since 2003. (4) According to survivors' testimonies, "men are killed, women are raped and villagers are forcibly displaced from their homes which are burnt [and] their crops and cattle, their main means of subsistence, are burnt or looted." (5) To many in the international human rights community, this female refugee is a survivor of a genocide involving the systematic rape of civilian populations. (6)

Wartime sexual violence has been the tragic reality for millions of women victimized over centuries by perpetrators who have historically inflicted unspeakable pain and destruction with impunity. (7) Sexual violence is a broad category of harm defined as "any act of a sexual nature which is committed on a person under circumstances which are coercive," including rape, sexual slavery, and molestation. (8) In the context of war, sexual violence is often perpetrated by male combatants against female civilians to "inflict trauma and thus to destroy family ties and group solidarity within the enemy camp." (9) Wartime sexual violence is also employed as "an integral [aspect] of ethnic cleansing ... intended to render an area ethnically homogeneous by removing members of a given group." (10) Sexual violence has only recently achieved recognition in international law as a war crime, crime against humanity, and form of genocide. (11)

Despite advancements in recognizing sexual violence as a serious breach of international law, the prosecutorial records for crimes of sexual violence at international tribunals indicate the lack of a comprehensive theory of wartime sexual violence and under-enforcement of international law proscribing it. (12) As a result, the perception that sexual violence against women is of secondary importance and ignorance concerning the multiple functionalities of wartime sexual violence continue to linger. (13) Moreover, a culture of impunity persists as soldiers, rebels, and peacekeepers continue to rape, sexually molest, and enslave hundreds of thousands of women free from condemnation. (14)

As one scholar aptly observed, "[i]n order to understand how to prevent violence against women, we must concern ourselves with how this reality of abuse figures into both the adjudication of rape and sexual violence and the way in which we collectively address and remember this reality." (15) The way wartime sexual violence is conceptualized is important to ensuring that it is charged under a framework that most accurately represents the offense and effectively prosecuted at international tribunals. (16) Despite this importance, there remains debate over the proper conceptualization of wartime sexual violence. (17)

At the ICC, as at formerly established ad hoc international criminal tribunals, sexual violence has been conceptualized as a war crime, crime against humanity, and form of genocide. (18) Conceptualizing crimes of sexual violence as war crimes requires associating offenses with the armed conflict in the context in which they occur. (19) Conceptualizing sexual violence as a war crime places the primary focus on the violation of a victim's individual human right to be free from invasions of her bodily and...