Academic

Van Schaack on the International Criminal Tribunal & Gender Justice

By Lawrence Solum

Beth Van Schaack (Santa Clara University - School of Law) has posted Obstacles on the Road to Gender Justice: The International Criminal Tribunal for Rwanda as Object Lesson (American University Journal of Gender, Social Policy & the Law, 2009) on SSRN.  Here is the abstract:

Although unlawful, violence against women continues to be employed as a deliberate tactic of war to humiliate, dominate, and instill fear in embattled communities, as recently noted by the Security Council in Resolution 1820. Even where such acts are not the result of an express governmental or group policy, gender violence is regularly tolerated by authorities as a way to reward exhausted fighters and further terrorize, punish, or humiliate an enemy community. Although the substantive law outlawing such gender violence is now well established, significant obstacles remain to ensuring a robust system of gender justice in international criminal law. These obstacles are less visible than defects in positive law, because they emerge in the practice of international criminal law at crucial yet shrouded stages of the penal process: investigation, charging, pre-trial plea negotiations, trial preparation, the provision of protective measures, and appeals. Most importantly, strong positive law is irrelevant where a commitment to gender justice does not infuse all stages of the development and implementation of a prosecutorial strategy.

Although gender violence in Rwanda did not receive the levels of media attention focused on similar crimes committed in the former Yugoslavia, the Rwandan statistics-inherently approximate-are stunning. Estimates range from 250,000 to 500,000 rapes during the short period of the genocide (April-June 1994). Yet, the results of the cases before the ICTR do not reflect the high levels of gender violence in Rwanda during the genocide. In fact, the systemic lack of gender violence charges and the high number of acquittals for what charges were brought generates the opposite impression. This disconnect lies at the heart of this paper, which will discuss the many ways in which gender justice can be neglected or sidelined in international criminal law with a particular focus on the history of gender justice prosecutions before the ICTR and the decisions and practices of that Tribunal's Office of the Prosecutor. This study makes clear that where gender violence is not central to a prosecutorial strategy, potential charges become dispensable and charged crimes result in acquittals when subjected to the adversarial criminal justice process. Although it is largely too late for the women of Rwanda, this paper presents ways in which the ICC-whose constitutive statute contains groundbreaking and enlightened structural, procedural, and substantive provisions to ensure gender justice-can generate better results for women victims elsewhere and ensure that the missteps, carelessness, and neglect characterizing gender justice before the ICTR are not repeated.

Full post as published by Legal Theory Blog on January 22, 2009 (boomark / email).