Dilemmas of Reconciliation: Cases and Concepts

By Carol A.L. Prager; Trudy Govier | Go to book overview

5
Mass Rape and the Concept of
International Crime

Larry May

International criminal law is currently faced with a defining moment: how to understand the truly international character of certain kinds of crime while providing an expanded forum for the prosecution of egregious harms in the world. I offer a resolution of this problem by arguing that unless there has been a complete breakdown of the rule of law in a particular country, international tribunals should only be concerned with prosecuting individuals for crimes that are group-based, in that the harms are directed against individuals because of their group memberships or where there is some kind of state (or state-like) involvement, and typically only where both of these factors are present. Isolated acts of rape should not normally be subject to international prosecution, but examples like the “comfort women” of the Second World War would be properly prosecuted internationally. Given that international criminal trials often intensify conflict among peoples, such trials should only be conducted in the most extreme of cases, and only when there is a very clear reason to prosecute internationally rather than domestically. Reconciliation often will dictate that some forum for remedy other than international criminal prosecutions be pursued.

How should international crimes be distinguished from domestic crimes? If the Rome Treaty creating an International Criminal Court (ICC) is adopted, will the ICC usurp domestic courts? In statements, such as those made by U.S. State Department officials and Senate Foreign Relations Committee members, the argument was advanced that the ICC had

Notes to chapter 5 are on pp. 163-68.

-137-

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