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Gender Crimes Under International Criminal Law Richard J New England Journal of Public Policy Volume 19 | Issue 1 Article 8 9-21-2003 Engendering Accountability: Gender Crimes Under International Criminal Law Richard J. Goldstone Constitutional Court of South Africa Estelle A. Dehon Oxford University Follow this and additional works at: http://scholarworks.umb.edu/nejpp Part of the History of Gender Commons, International Relations Commons, and the Military, War and Peace Commons Recommended Citation Goldstone, Richard J. and Dehon, Estelle A. (2003) "Engendering Accountability: Gender Crimes Under International Criminal Law," New England Journal of Public Policy: Vol. 19: Iss. 1, Article 8. Available at: http://scholarworks.umb.edu/nejpp/vol19/iss1/8 This Article is brought to you for free and open access by ScholarWorks at UMass Boston. It has been accepted for inclusion in New England Journal of Public Policy by an authorized administrator of ScholarWorks at UMass Boston. For more information, please contact [email protected]. Engendering Gender Crimes Accountability Under International Criminal Law Richard J. Goldstone Estelle A. Dehon Gender crimes, such as rape, sexual assault, sexual slavery, and forced prostitu- tion, have always been perpetrated during war, yet the laws of war have been slow to acknowledge these crimes and to bring their perpetrators to justice. This article examines the response of the International Criminal Tribunals for the Former Yugoslavia and Rwanda to this lacuna in international law, and ana- lyzes the mainly positive developments they have made in this area in relation to the definition of rape and to the prosecution of gender crimes as crimes against humanity, war crimes, grave breaches of the Geneva Conventions, and geno- cide. It also traces the procedural safeguards instituted to facilitate the prosecu- tion of gender crimes. The authors consider the way in which these advances have been taken forward in the Statute of the International Criminal Court, and the usefulness of other responses, such as the truth commissions in Bosnia and Yugoslavia, and the gacaca courts in Rwanda. n September 1998, Trial Chamber I of the International Criminal Tribunal for I Rwanda (ICTR) rendered judgment in the case of The Prosecutor v Jean-Paul Akayesu.1 The three judges, drawn from around the world and acting on behalf of the entire international community, stated unequivocally that “rape is a form of aggression,” “a violation of personal dignity,”2 and that rape and sexual violence constitute “one of the worst ways of [harming] the victim, as he or she suffers both bodily and mental harm.”3 For the first time in the history of humanitarian law, the Chamber handed down a conviction for rape as a crime against humanity and held that the rapes condoned and encouraged by Akayesu constituted genocide.4 To date,5 the Rwanda Tribunal has indicted thirty-four men and one woman for gender crimes,6 including nine former government ministers, and has found three people guilty of rape as genocide or as a crime against humanity. The Tribunal for the former Yugoslavia (ICTY) has convicted seven perpetrators of rape, has held sexual slavery to be a crime against humanity, and thirty of its public indictments, including those of Slobodan Milosevic, former president of the Former Republic of Yogoslavia (FRY); Radovan Karadic, the former leader of Republika Srbska; and Ratko Mladic, his army chief, incorporate gender crimes. In the past decade of tumultuous progress in international criminal law, the advances made in the recognition and prosecution of gender crimes committed Richard Goldstone is a Justice of the Constitutional Court of South Africa and former Chief Prosecutor for the International Criminal Tribunals for the Former Yugoslavia and Rwanda. Estelle Dehon is a masters student at Oxford University and former law clerk at the Constitu- tional Court of South Africa. 121 New England Journal of Public Policy during armed conflict stand out as noteworthy. This is particularly so because of the history of virtual effacement of these crimes from international instruments and prosecutions.7 In this article, we examine the successes and shortcomings of the way in which the International Criminal Tribunals have effected both substantive and procedural developments in prosecuting gender crimes. We also consider how these developments have been taken forward in the Rome Statute establishing the Interna- tional Criminal Court. The constant background for this analysis is the recognition that rape, sexual slavery, forced pregnancy, and other forms of gender violence will in all likelihood persist among the most heinous aspects of war, and that the multiplicity of ethnic conflicts plaguing many different parts of the world threaten to expand the use of gender crimes as a means to bring about genocide and ethnic cleansing. The institutions responsible for developing international criminal law in this area are therefore facing a pertinent and difficult challenge in assessing and augmenting the practical deterrent effect of prosecuting gender crimes and find- ing ways to change the attitudes that lead to gender violence in war.8 The International Criminal Tribunals: Breaking the Pattern of Disregard One of the unique characteristics of the International Criminal Tribunals is the concern that was shown, right from their inception, to ensure that prosecutions for gender crimes would occur. This is reflected in the early Security Council resolutions concerning the conflict in Bosnia and Herzegovina — resolutions that paved the way for the establishment of the ICTY. One of these, Resolution 798, contains the first ever condemnation by the Security Council (SC) of rape in war, declaring the SC to be “appalled by reports of the massive, organized and systematic detention and rape of women, in particular Muslim women, in Bosnia and Herzegovina.”9 As was recognised by the ICTY itself, this reaction against sexual violence was a key element in motivating the creation of the Tribunal.10 Once the Security Council had formally proposed the idea of a tribunal as a way to restore peace in the former Yugoslavia,11 the Secretary-General compiled a report on all aspects of implementing the tribunal, in which he highlighted the “widespread and systematic rape and other forms of sexual assault, including enforced prostitu- tion,” occurring in the Balkans.12 Concern to address these crimes led the Secretary-General to break new ground in international criminal law in his proposed statute for the ICTY by enumerating rape as a crime against humanity in Article 5(g), and by suggesting that, given the fact that the Tribunal would have to deal with “victims of rape and sexual assault, due consideration should be given in the appointment of staff to the employment of qualified women” in the Office of the Prosecutor. These suggestions were accepted,13 and subsequently the Statutes of both the International Criminal Tribunals set important precedents in enumerating rape as a crime against humanity and entrenching various procedural safeguards for the protection of victims of and witnesses to sexual assaults. The Statute of the Rwanda Tribunal, set up three years later in response to the genocide in Rwanda, goes even further than its counterpart. It enumerates rape as a war crime, and also expressly refers to “rape, enforced prostitution and indecent assault” as violations of Common Article 3 of the 1949 Geneva Conventions.14 This stands in stark contrast to the Tribunals’ legal predecessors, the International Military Tribunal in Nuremberg (IMT) and the International Military Tribunal for the Far East in Tokyo (IMTFE), which were set up in the aftermath of World War 122 II. Neither of the statutes of these tribunals contained any reference to rape. Although both the French and Soviet prosecutors before the IMT introduced evi- dence of rape in the course of establishing war crimes and crimes against humanity,15 the Nuremberg judgment does not once mention rape. Specific charges of rape were heard before the IMTFE, but none of the women who had been raped were actually called to testify.16 The IMTFE did recognise that “[a]pproximately 20,000 cases of rape occurred within the city [of Nanking] during the first month of the occupation,”17 but it devotes only one paragraph of its judgment to the gender crimes infamously memorialized as the “Rape of Nanking.” Rape was subsumed under general charges of command responsibility for the atrocities committed in Nanking, and the conviction of General Iwane Matsui for war crimes and crimes against humanity was based in part on evidence of rape committed by his troops. The equally notorious forcing of thousands of “comfort women” into prostitution in Japanese military brothels was, however, ignored by the IMTFE.18 For the greater part of the twentieth century, therefore, the law of war largely overlooked women and gender crimes as potential subjects.19 This is not really surprising, given that these laws were written by men drawing heavily on the male chivalric tradition20 and were interpreted by male military lawyers, judges, and governmental experts in an age when rape was placed on the same footing as plun- der, and was considered to be an inevitable consequence of war. The International Criminal Tribunals therefore represent a distinct shift in approach, which has been characterized as “a specific intent to prosecute the perpe- trators of sexual assaults.”21 In fulfilling this specific intent, the Tribunals have ad- vanced the substance of humanitarian law through
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