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International tribunals wrestled over the definition of rape in the 1990s and 2000s. Some cases emphasized the use of coercion in the context of violent conflict while other cases emphasized non-consent of the victim. In terms of the burden of proof and the credibility of the international courts, it matters greatly which criteria the courts use to define rape.
 

What makes an act a rape in international law? What criteria have international tribunals used to determine whether someone was responsible for rape in a context of genocide? What criteria should they use?

A number of rape cases appeared before the International Criminal Tribunal of Rwanda (ICTR) and the International Criminal Tribunal of the Former Yugoslavia (ICTY) in the 1990s and 2000s. However, the courts (and the judges within the courts) were not in accord on the definition of rape.

Two Criteria for Rape

In both international law and national laws, two criteria are used to identify rape (see Table 1).

National rape laws draw on both criteria. Some laws focus on one versus the other. Others require that both coercion and non-consent be demonstrated.

The history of the ICTR and ICTY rape decisions reveal the international judiciary wrestling over which of these criteria should be applied in international law.

Table 1: Criteria to Identify Rape in International Law


Coercion

non-consent

Nature of the crime

Crime of inequality (whether of force, physical power, status or relation)

Deprivation of sexual freedom and individual self acting

Focus

Power, domination, violence

Love or passion gone wrong

Proof of rape

Located in the material plane: physical acts, surrounding contexts, exploitation of relative position

Located in the psychic space of victim and perpetrator

Relevant events (frame)

Social, contextual and collective

Individuals engaged in one-at-a-time interactions

International Tribunals Vacillate on the Appropriate Rape Criteria

The 1994, ICTY Rules of Procedure and Evidence (Rule 96) originally provided that “consent shall not be allowed as a defense” to changes of rape under the tribunal's jurisdiction. However, this rule was later set aside, and cases before both the ICTY and ICTR vacillated on the question of whether consent was a relevant criteria for prosecuting rape in international conflicts.

1998: ICTR, Trial Chamber I, Akayesu: coercion was identified as the criteria for rape. “Coercive circumstances need not be evidenced by a show of physical force” but “can be inherent in circumstances like armed conflict or military presence of threatening forces on an ethnic basis.” For the Akayesu judgment, consent was irrelevant.

1998: ICTY, Furundzija, required showing penetration “without consent of the victim.” Furundzija required showing that various bodily orifices had been penetrated so that the law would be specific. Otherwise, concentration camp guards might not be sufficiently clear that what they were doing to their prisoners was a crime. This amounted to reintroducing the relevance of consent for rape prosecution.

2001: ICTY, Kunarac, rapes that occurred in a brothel-like setting in Foca were a form of enslavement. The court drew on the Furundzija decision and concluded that “sexual penetration will constitute rape if it is not truly voluntary or consensual on the part of the victim.” The main principle being violated was sexual autonomy.

2002: ICTY, Kunarac appeal judgment (Appeals Chamber), noted that the trial chamber had departed from the Tribunal's prior definition of rape when it focused on “the absence of consent as the condition” for the crime being rape. The Appeals Chamber leaned toward the need to “presume non-consent” in contexts like genocide. In situations like Foca where women were held in rape camps, “such detentions amount to circumstances that were so coercive as to negate any possibility of consent.” The Appeals Chamber shopped just short of finding the notion of consent legally irrelevant in cases where rapes are connected to war, crimes against humanity or genocide.

2003: ICTR, Semanza, returned rape to non-consent. The Semanza trial chamber held that “the mental element for rape as a crime against humanity is the intention to effect the prohibited sexual penetration with the knowledge that it occurs without the consent of the victim.” In effect, rape went from being a physical act committed on the body of a victim to a psychic act committed in the mind of the perpetrator.

2003: ICTR, Kajelijeli, followed Semanza and focused on non-consent and description of body parts when determining whether Mr. Kajelijeli should be held responsible for rapes committed by forces under his command. He was found innocent of rape and was not found guilty of genocide for the rapes his men committed. Judge Arlette Ramaronson wrote a powerful dissent exposing a double standard in the majority's decision. She exposed the fact that superiors are more likely to be found responsible for killings than for rapes carried out by those under their command.

2005: ICTR, Muhimana: moved back away from non-consent definition, stating, “coercion is an element that may obviate the relevance of consent as an evidentiary factor in the crime of rape.” In other words, the court ruled that most international crimes will be almost universally coercive—making true consent virtually impossible and therefore irrelevant for international prosecution.

Coercion, Consent and International Crimes

No other crime against humanity, once other standards are met, requires that the crime be proved to be non-consensual. In fact, using victim's consent as a defense would be bizarre. Consider a trial for murder within a genocide. How plausible would it be if a defendant claimed that, even though the act of killing took place within a setting of genocide, the victim had really wanted to be killed, so the perpetrator simply obliged? The act, according to the defendant, was really euthanasia and not murder. It is difficult to image a defense like that being taken seriously. Oddly, this type of defense is used in some genocide rape cases.

The reason that consent is not relevant for prosecuting rape in international crimes is that the crime takes place within a context where what we normally think of as sexual autonomy (at least for women) does not exist. If a woman is given a choice to be gang raped on a daily basis by soldiers in a rape camp versus being a personal sex slave to a particular solder, is that really any choice at all? Is she really giving consent to be raped in one context versus another or is she simply doing what she can to survive and avoid the most heinous violations? Given the context of radical force, there is no true choice and so no consent in international crimes.

Burden of Proof

Proving rape in genocide (or other violent conflicts) using the Akayesu criteria would be relatively straightforward. Once the context of the violent conflict has been established, rape occurring within that context is assumed to be non-consensual. On the other hand, many rapes that would be provable under Akayesu would be difficult or impossible to prove under the Semanza definition. This would not only insult the victims but severely damage the credibility of the international tribunals for handling rape cases.

 
Data and Methods:

Data Sources:

Selected rape cases before the ICTY and the ICTR in the 1990s and 2000s.

Funding Sources:

Not reported.

 
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Reference

MacKinnon, Catherine A. 2006. "Defining Rape Internationally: A Comment on Akayesu." Pp. 237-246 in Are Women Human? Catherine MacKinnon. Cambridge, MA: The Belknap Press of Harvard University Press.

 
 
 
 
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