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

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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. …