Abstract
In their contribution to the AJIL Symposium, Robinson and MacNeil remark that a prolific legacy of the International Criminal Tribunal for Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) is that “it is now commonsense that rape is and must be a war crime.” This line distills the complexity of the legacies of the tribunals regarding sexual and gender-based violence. On the one hand, it articulates the critical role of the tribunals in cementing the idea that sexual violence, hitherto largely relegated to indifference in international criminal law and policy frameworks, is worthy of international attention. Simultaneously, it encapsulates the ways in which the tribunals’ jurisprudence has been received globally to narrate a narrow conception of conflict-related sexual violence as a “weapon of war” or committed as part of “strategic” conflict-related goals. In fact, there is little that constitutes common sense about sexual violence in conflict, nor is it always, or even most predominantly, committed as a war crime, crime against humanity,or in pursuit of genocide as envisaged by international criminal law. Various studies suggest that sexual violence in war takes many forms and causalities with differentiation across and within conflict contexts.
Highlights
In their contribution to the AJIL Symposium, Robinson and MacNeil remark that a prolific legacy of the International Criminal Tribunal for Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) is that “it is commonsense that rape is and must be a war crime.”[1]. This line distills the complexity of the legacies of the tribunals regarding sexual and gender-based violence
It is clear that the ICTY and ICTR find critical legacy in their emphasis on sexual violence in war, through which they have contributed to a legal and political context in which sexual violence cannot be relegated to a lesser crime in the context of other atrocities in international criminal law
The tribunals have contributed to a narrative framing of sexual violence which articulates a necessarily strategic instrumentality of conflict-related sexual violence, which, while presented as universal, does not always accord with how sexual violence happens in conflict
Summary
In their contribution to the AJIL Symposium, Robinson and MacNeil remark that a prolific legacy of the International Criminal Tribunal for Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) is that “it is commonsense that rape is and must be a war crime.”[1]. The tribunals’ jurisprudence was instrumental in the inclusion of sexual violence crimes during the negotiations for the development of the Rome Statute of the International Criminal Court (ICC),[5] which recognizes that sexual violence can be committed as a war crime or crime against humanity.[6] Sexual violence is not included in the Rome Statute as an element of genocide, but the link between sexual violence and genocide is articulated in the ICC’s Elements of Crimes Document,[7] which is explicitly indebted to the linking of sexual violence to genocide in the Akayesu case at the ICTR.[8] Sexual violence has entered the lingua franca of international criminal law and this feature is indebted to the work and jurisprudence of the tribunals This expansive attention paid to sexual violence has led many to speak of the legacy of the tribunals in celebratory terms. A documentary produced as part of a legacy project on the tribunals’ work on sexual
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