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: I. The Evolving Status of Sexual Violence in International Law B. Prosecution of Crimes of Sexual Violence by International Tribunals 2. Sexual Violence Jurisprudence at the ICC through Conclusion, with footnotes, p. 1274-1300

2. Sexual Violence Jurisprudence at the ICC

   The international trend toward prosecuting crimes of sexual violence advanced by the ICTY and ICTR continued with the founding of the ICC in 1998. (131) The ICC's founding documents provide the Court with a powerful platform from which to pursue sexual violence prosecutions. (132) The Rome Statute codified a wide range of sex-based crimes and provided jurisdiction over war crimes, crimes against humanity, and genocide based on sexual violence. (133) The Rome Statute also informed the establishment of mechanisms to aid gender equality in prosecutions. (134) In its initial years of operation, these provisions and mechanisms have enabled the ICC to bring sexual violence charges in several cases before it. (135) These developments are reviewed in the following subsections.

   1. Establishing a Platform for Sexual Violence Prosecutions at the ICC

      The Rome Statute is the most comprehensive modern codification of sexual and gender-based violations to date. (136) Drawing from the jurisprudence of the ICTY and ICTR, the Rome Statute codified the crime of rape in the Elements of Crimes. (137) In the Elements of Crimes, rape is defined as the "penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body" when committed "by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power ... or by taking advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine consent." (138) This definition reflects the evolution of the definition of rape at the ICTY and ICTR discussed above. (139) The Elements of Crimes also provides definitions for a range of other sex-based crimes, including sexual slavery and enforced prostitution. (140)

      In addition, the Rome Statute affirmed the status of sexual violence as a war crime, crime against humanity, and act of genocide under international law. (141) The Rome Statute explicitly enumerates several sex-based offenses as war crimes considered serious violations in international conflicts including "rape, sexual slavery, enforced prostitution, forced pregnancy ... enforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions." (142) The same substantive acts are considered serious violations of the laws and customs applicable in non-international conflicts with "any other form of sexual violence also constituting a serious violation of [Common] [A]rticle 3" in place of the grave breach provision. (143)

      The Rome Statute also explicitly provides that crimes against humanity under the jurisdiction of the ICC include the sex-based oflenses of "[r]ape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, [] any other form of sexual violence of comparable gravity," and persecution on gender grounds "when committed as part of a widespread or systematic attack directed against any civilian population." (144) Finally, the Rome Statute provides that sexual violence may also be the actus reus of genocide in the form of causing serious bodily or mental harm or measures intended to prevent births within the group. (145)

      In addition to codifying a wide range of sex-based crimes, the Rome Statute also encouraged structures and practices to ensure the prioritization and effective prosecution of crimes of sexual violence at the ICC. (146) For example, the ICC has created a role for victim participation, formed safeguards to protect victims, emphasized the need for gender sensitivity, and integrated women into positions of influence. (147)

   2. Charging Crimes of Sexual Violence at the ICC

      Since its founding, the ICC has brought a range of sexual violence charges across several of the Situations under its purview. (148) Currently, charges of sexual violence have been brought in seven of the thirteen cases before the ICC arising from Situations in the DRC, Uganda, Darfur, the Central African Republic, and Kenya. (149) There are several pending cases, however, which do not contain charges for gender-based crimes including two in the DRC Situation, two in the Darfur Situation, one in the Kenya Situation, and one in the Libya Situation. (150) While the Prosecutor has indicated that he intends to investigate further the allegations of sexual violence in the Libya Situation, no charges for gender-based crimes have been sought. (151)

      In cases in which sexual violence charges are pending, sexual violence has been charged under the war crime, crimes against humanity, and genocide frameworks. (152) Specifically, sexual violence has been charged as the explicitly sex-based offenses of rape, sexual violence, and sexual slavery. (153) Sexual violence has also been charged as a form of "causing serious bodily or mental harm, ... torture, persecution, other inhumane acts, cruel or inhuman treatment, and outrage on personal dignity." (154)

      While the ICC's policy on cumulative charges and convictions is not yet fully developed, recent proceedings indicate that the ICC may be less willing to allow cumulative charges than the ICTY and ICTR. (155) In a decision confirming charges in the case of Prosecutor v. Bemba Gombo, for example, the ICC Pre-Trial Chamber found that cumulative charging was unfair to the defense and declined to confirm charges of torture and outrages on personal dignity because the underlying sexual violence was incorporated within the charge of rape. (156) There, the Bemba court endorsed a rule similar to that adopted by the ICTY: Cumulative charges will only be confirmed where "each statutory provision allegedly breached in relation to one and the same conduct requires at least one additional material element not contained in the other." (157) The Bemba court encouraged the prosecution to be more selective in its choice of charges, citing concerns regarding burdening the defense and delaying proceedings. (158)

3. Prosecutorial Effectiveness of Sexual Violence Prosecutions at the ICTY, ICTR, and ICC

   Recently, two decades after the founding of the ICTY and ICTR and one decade after the founding of the ICC, scholarship has focused on assessing the effectiveness of international sexual violence prosecutions at the tribunals. (159) In the context of armed conflict, investigations at the international tribunals often "uncover instances of massive criminality," (160) and trial teams "can be overwhelmed by the breadth and volume of evidence gathered by investigators." (161) Overall, the lack of a comprehensive theory on how sexual violence fits into each armed conflict is cited by many scholars as a cause of ineffective case management. (162) When investigations and prosecutions are not focused on developing sexual violence crimes, the result is often that resources are not allocated to effectively investigate, charge, and prosecute these crimes. (163) This efficiency review is explored in the following subsections.

   1. Assessing Prosecutorial Effectiveness at the ICTY and ICTR

      While the ICTY and ICTR have made monumental progress in prosecuting wartime sexual violence, as discussed above, their prosecutorial records have at times been flawed and inconsistent. (164) Some scholars have found the ICTY to have more consistent levels of sexual violence investigations, charges, and convictions than the ICTR. (165) These scholars explain the difference by pointing to the fact that "[r]ape prosecution was a consistent element of the ICTY prosecution strategy ... [but] was not a central focus of the ICTR prosecution strategy." (166)

      As the experiences at the ICTY and ICTR have evidenced, when prosecutors fail to develop consistent theories of how sexual violence fits into the policies of accused war criminals, the result is often the neglect of the issue of sexual violence and inefficient management of sexual violence cases. (167) Sexual violence charges are especially vulnerable due to the modern trend toward streamlined indictments with priority given to the most egregious harms and high-level offenders. (168) As prosecutors at the tribunals feel pressure to speed trials and drop superfluous charges, sexual violence charges are often the most susceptible to being left out. (169)

      Furthermore, the factors that commonly inform prosecutorial discretion have contributed to "the exclusion of viable charges for gender violence" at the ICTY and ICTR. (170) The decision of what charges to bring is often made based on "the seriousness of the crime including its severity, magnitude, nature and impact." (171) Under this test, crimes of sexual violence are often sidelined in favor of crimes of murder or extermination, which are perceived as more important, more egregious, or easier to prosecute. (172) In addition, other key considerations are the leadership level of potential defendants and "the responsibility quotient among the senior leaders [including] their involvement, manner or participation, contribution to the crime and [the] importance of their role." (173) Under these factors, sexual violence prosecutions may be hindered by the reluctance to hold political and military leaders accountable for sexual crimes committed by their subordinates. (174)

   2. Assessing Prosecutorial Effectiveness at the ICC

      The ICC's record on sexual violence thus far has also been "mixed." (175) Despite progress in pursuing sexual violence charges referenced above, gender-based crimes remain the most vulnerable type of crime addressed by the ICC due to failure to adequately investigate, charge, and prosecute. (176) Initial investigations at the ICC have reportedly been hindered by inadequate planning and "lack of an effective strategy regarding the investigation of sexual violence and gender-based crimes." (177)

      In addition, sexual violence...