Sierra Leone: The Proving Ground for Prosecuting Rape as a War Crime
Eaton, Shana, Georgetown Journal of International Law
TABLE OF CONTENTS I. INTRODUCTION II. THE CONFLICT IN SIERRA LEONE A. Ten Years of Civil War B. The Lome Peace Accord C. Sexual Violence Against Women During the Conflict III. THE DEVELOPMENT OF THE PROSECUTION OF RAPE AS a WAR CRIME A. World War II and the Expansion of Humanitarian Law B. Geneva Convention C. The International Criminal Tribunals IV. BALANCING INDIVIDUAL WOMEN'S NEEDS AGAINST COLLECTIVE WOMEN'S HUMAN RIGHTS CONCERNS IN RAPE PROSECUTIONS: LESSONS LEARNED FROM THE ICTY AND THE ICTR A. International Criminal Tribunal Practices and the Rules of Evidence and Procedure That Affect Victims of Sexual Violence Involved in Criminal Prosecution 1. ICTY and ICTR Rule 96: Evidence in Cases of Sexual Assault 2. ICTY Rule 69/ICTR Rule 34: Victims and Witness Protection Units 3. Other Relevant Procedural and Evidentiary Devices 4. Release of Therapy Records 5. Cross Examination Techniques 6. Discrepancies in the Treatment of Victims and the Accused 7. Sentencing B. The Purpose of International Tribunals and How They Can Be Used To Develop Women's Human Rights C. Dissolving the Tension Between Individual Victim's Human Rights and Women's Human Rights Collectively V. SIERRA LEONE: THE NEXT STEP IN THE DEVELOPMENT OF RAPE AS A WAR CRIME A. A Conflict Without Ethnic Cleansing B. The Special Court for Sierra Leone 1. Combining National and International Law in the SCSL 2. Prosecuting War Crimes Within Sierra Leone 3. Funding the Court C. The Concurrent Use of the SCSL and the TRC VI. CONCLUSION: GAINING A VOICE AND GAINING POWER--THE LESSONS Or THE ICTY AND ICTR APPLIED TO SIERRA LEONE
While sexual violence against women has always been considered a negative side effect of war, it is only in recent years that it has been taken seriously as a violation of humanitarian law. In the "evolution" of war, women themselves have become a battlefield on which conflicts are fought. Realizing that rape is often more effective at achieving their aims than plain killing, aggressors have used shocking sexual violence against women as a tool of conflict, allowing battling forces to flaunt their power, dominance, and masculinity over the other side. The stigma of rape is used to effectuate genocide, destroy communities, and demoralize opponents--decimating a woman's will to survive is often only a secondary side effect.
As warfare has "evolved," civilians have increasingly become more entangled in the hostilities. It is against this backdrop--one where nine out of ten victims of war are civilians--that an understanding has begun to develop of how women suffer from war and its effects differently than men do. (1) Part of this understanding has been the recognition of rape as a grave crime and not just an unfortunate side show of war. This recognition is reflected most clearly in the prosecution of rape as a war crime.
The jurisprudence and recognition by the international community of rape as a war crime have expanded significantly over the past ten years. While the International Criminal Tribunal for Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) have both made great strides in terms of prosecuting these crimes, the legal protections that exist for those who have been victims of rape during war are still quite limited. Just as national legal systems have struggled to balance the requirements of the criminal law with the special needs of victims of sexual violence, so too have the International Criminal Tribunals. Additionally, despite the gains that have been made, the recent situations in which rape has been prosecuted as a war crime are marked by a limited range of circumstances--in particular, the crime has taken place against a background of genocide. …