Click to increase image sizeClick to decrease image size Notes 1 Prosecutor v Akayesu (Judgment), September 2, 1998, ICTR 96-4-T (Trial Chamber), paras 731–734. 2 ICTR Statute, art. 2(2). 3 ICTY Statute, art. 4(2). 4 ICC Statute, art. 6; see also 1996 ILC Draft Code of Crimes against Peace and Security of Mankind, art. 17. 5 W. Schabas, Genocide in International Law (Cambridge: Cambridge University Press, 2000), p 73. 6 Prosecutor v Delalić & Ors (Judgment), November 16, 1998 (ICTY Trial Chamber). 7 Prosecutor v Muhimana (Judgment and Sentence), April 28, 2005 (ICTR Trial Chamber). 8 Prosecutor v Furundžija (Judgment), December 10, 1998 (ICTY Trial Chamber). 9 Prosecutor v Kunarac & Ors (Judgment), February 22, 2001 (ICTY Trial Chamber). 10 Akayesu, op cit, para 687 (Trial Chamber). 11 Ibid, paras 598 and 688. 12 Ibid, para 687. 13 Ibid, para 688. 14 Furundžija, op cit, paras 175, 180 (Trial Chamber). It is to be noted, however, that as regards their eventual extension of the description of rape to forcible oral sex, the Chamber appeared to have based their analysis on the motivation of international law in preventing “outrages upon personal dignity”: see para 183. 15 Ibid, para 185 (Trial Chamber). 16 So did the ICTR judges who decided the Semanza and Kajelijeli cases. 17 Kunarac, op cit, para 438 (Trial Chamber), emphasis in original. 18 Ibid, paras 440 and 441. 19 Ibid, paras 438–460. 20 Furundžija, op cit, paras 182 and 184. Although the Chamber's analysis in this respect started in para 183 with a reference to “forced penetration of the mouth by the male sexual organ,” there is no doubt that the analysis would also contemplate forced cunnilingus. 21 Ibid, para 181. As noted by the Chamber at para 182: “A major discrepancy may, however, be discerned in the criminalisation of forced oral penetration: some States treat it as sexual assault, while it is categorised as rape in other States.” 22 Prosecutor v Musema (Judgment and Sentence), January 27, 2000 (ICTR Trial Chamber). The conviction for rape was reversed on appeal on grounds of insufficient evidence of the personal involvement of the accused in the rape: Musema v Prosecutor (Judgment), November 16, 2001 (ICTR Appeals Chamber). 23 Musema (Judgment), op cit, paras 229, 907, 933 and 936; Prosecutor v Niyitegeka (Judgment and Sentence), May 16, 2003 (ICTR Trial Chamber), para 456. It is noteworthy, perhaps, that although the Niyitegeka bench was composed of Judge Navanethem Pillay (presiding) and two other judges, Musema was decided by the same three judges (Laïty Kama, Lennart Aspegren, and Navanethem Pillay) who had decided Akayesu. In Musema, the Chamber reiterated the definition they offered in Akayesu, having considered the departure from that definition as was made in Furundžija: see Musema, infra, paras 220–229. 24 See Prosecutor v Semanza (Judgment and Sentence), May 15, 2003 (ICTR Trial Chamber), paras 344–346; Prosecutor v Kajelijeli (Judgment and Sentence), December 1, 2003 (ICTR Trial Chamber), paras 910–915; and Prosecutor v Kamuhanda (Judgment and Sentence), January 22, 2003 (ICTR Trial Chamber), paras 705–710. 25 Prosecutor v Gacumbitsi (Judgment and Sentence), June 17, 2004 (ICTR Trial Chamber), para 321. 26 Muhimana, op cit, para 551. 27 Ibid, paras 541 and 549. 28 In this connection, one must note the following remark in Furundžija following the Chamber's note of how rape had been defined in Akayesu and Čelebići: “This Trial Chamber notes that no elements other than those emphasized may be drawn from international treaty or customary law, nor is resort to general principles of international criminal law or to general principles of international law of any avail. The Trial Chamber therefore considers that, to arrive at an accurate definition of rape based on the criminal law principle of specificity (Bestimmtheitgrundsatz, also referred to by the maxim ‘nullum crimen sine lege stricta’), it is necessary to look for principles of criminal law common to the major legal systems of the world. These principles may be derived, with all due caution, from national laws.” 29 Muhimana, op cit, paras 550 and 551. 30 See discussion under the subtitle “The problems with Kunarac.” 31 See C. Chinkin, “Rape and sexual abuse of women in international law,” European Journal of International Law, Vol 5, 1994, fn 13. 32 K. Burgess-Jackson, “Introduction,” in K. Burgess-Jackson, ed., A Most Detestable Crime: New Philosophical Essays on Rape (New York: Oxford University Press, 1999), p 4, emphasis in original. 33 See discussion of the “sex → consent → force inquiry” below. 34 J. Gauthier, “Consent, coercion and sexual autonomy,” in Burgess-Jackson, A Most Detestable Crime, op cit, p 71. 35 K. Burgess-Jackson, “A history of rape law,” in Burgess-Jackson, A Most Detestable Crime, op cit, p 21. 36 D. Bryden and S. Lengnick, “Rape in the criminal justice system,” Journal of Criminal Law and Criminology, Vol 87, 1997, p 1194 et seq. 37 B. Baker, “Understanding consent in sexual assault,” in Burgess-Jackson, A Most Detestable Crime, op cit, p 49; see also S. McIntyre et al., “Tracking and resisting backlash against equality gains in sexual offence law,” Canadian Woman Studies, Vol 20, 2000, p 72. 38 Burgess-Jackson, “A history of rape law,” op cit, p 21, emphasis in original. 39 See generally E. Sheehy, “Legal responses to violence against women in Canada,” Canadian Woman Studies, Vol 19, 1999, p 62; Bryden and Lengnick, “Rape in the criminal justice system,” op cit; M. Denike, “Sexual violence and ‘fundamental justice’: on the failure of equality reforms to criminal proceedings,” Canadian Woman Studies, Vol 20, 2000, p 151 et seq; V. Berger, “Rape law reform at the millennium: remarks on Professor Beyden's non-millennial approach,” Buffalo Criminal Law Review, Vol 3, 2000, p 513. 40 The troubling part of the Kunarac judgment includes mentioning Canada in the context of a dense review of national jurisdictions that have retained the element of “sexual penetration” in their rape laws (which is no longer an element of Canadian law of sexual assault). 41 See generally A. J. Everhart, “Predicting the effect of Italy's long-awaited rape law reform in ‘The land of machismo’,” Vanderbilt Journal of Transnational Law, Vol 31, 1998, p 671. 42 See generally R. Bachman and R. Paternoster, “A contemporary look at the effects of rape law reform: how far have we really come?,” Journal of Criminal Law and Criminology, Vol 84, 1993, p 554. 43 Prosecutor v Kunarac (Judgment) of June 12, 2002 (ICTY Appeals Chamber), para 129. 44 (1950) ICJ Reports 128. 45 Ibid, p 148. 46 See Prosecutor v Kunarac, op cit, para 130 (ICTY Appeals Chamber). 47 Muhimana, op cit, para 546. See also Chinkin, “Rape and sexual abuse of women in international law,” op cit, fn 13. 48 Reference to “force” here includes real force, threat of use of force or other coercive circumstance. 49 In this connection, one must note the following concern of the Appeals Chamber: “A narrow focus on force or threat of force could permit perpetrators to evade liability for sexual activity to which the other party had not consented by taking advantage of coercive circumstances without relying on physical force” (Prosecutor v Kunarac, op cit, para 129, ICTY Appeals Chamber). With respect, this concern might not have arisen if the notion of “force” is taken, as it should, to include the presence of coercive circumstances, such as that which exists in the typical context of the events that give rise to the rape cases tried before international criminal courts. It is submitted that this is what the Akayesu Trial Chamber was driving at; and that is where the Akayesu Trial Chamber's aim meets the analysis and analogy made by the Kunarac Appeals Chamber in paras 131–132 of their judgment. 50 Much of what makes the consent inquiry, nay the traditional view, particularly suspect is its ancient link to Lord Hale's now much criticized jury caution that “it must be remembered, that [rape] is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, tho never so innocent.” Hale, Pleas of the Crown, 1736–39, Vol 1, p 635. (See also Blackstone, Commentaries on the Laws of England (Oxford: Clarendon Press, 1765–1769), Vol 4, pp 214–215; Burgess-Jackson, A Most Detestable Crime, op cit, p 18). While reasonable people may disagree on the reasonableness of that caution per se, what is done in the name of it is quite another matter. Specifically, complainants should not be put on trial in rape trials any more so than any other complainant in another case. 51 This suggestion must not be taken as advocating that the burden of proof in a rape case should entirely shift from the prosecution to the defence. (See E. Greer, “The truth behind legal dominance: feminism's ‘two percent false rape claim’ figure,” Loyola of Los Angeles Law Review, Vol 33, 2000, p 948.) Rather, the specific context of international criminal law perfectly accommodates the view that consent should be an affirmative defence, a view already expressed by such feminist writers as Catherine MacKinnon (see Greer, op cit, p 963, fn 79). 52 Prosecutor v Gacumbitsi (Judgment) of July 7, 2006, ICTR-2001-64-A (ICTR Appeals Chamber), para 154. 53 Ibid, para 155. 54 Ibid, para 155. 55 Schabas, op cit, pp 235–236. 56 See 18 USC §1091, emphasis added. 57 ICJ, General List No 91, dated 26 February 2007, para 198. 58 Prosecutor v Kayishema and Ruzindana (Judgment) of May 21, 1999, ICTR-95-1-T (ICTR Trial Chamber), para 97. 59 Prosecutor v Bagilishema (Judgment) of June 7, 2001, ICTR-95-1A-T (ICTR Trial Chamber), para 64 (“the intention to destroy must target at least a substantial part of the group”). 60 Prosecutor v Semanza (Judgment and Sentence) of May 15, 2003 (ICTR Trial Chamber), para 316 (“the intention to destroy must be, at least, to destroy a substantial part of the group”). 61 Prosecutor v Krstić (Judgment) of April 19, 2004, IT-98-33-A (ICTY Appeals Chamber), para 12. 62 Prosecutor v Kajelijeli (Judgment and Sentence) of December 1, 2003, ICTR-98-44A-T (ICTR Trial Chamber), para 809. See also Prosecutor v Kamuhanda (Judgment and Sentence) dated January 22, 2004, ICTR-99-54A-T (ICTR Trial Chamber), para 628. 63 Letter dated December 15, 1999 from the UN Secretary-General addressed to the President of the Security Council, enclosing Report of the Independent Inquiry into the actions of the United Nations during the 1994 Genocide in Rwanda, UN Doc No S/1999/1257 of December 16, 1999, p 38. 64 According to art. I, “[t]he Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish” (emphasis added). 65 Art. VIII of the Genocide Convention provides: “Any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated in article III.” 66 See Akayesu, op cit, para 521. 67 S. Power, “Bystanders to genocide,” The Atlantic Monthly, September 2001, http://www.theatlantic.com/doc/200109/power-genocide/6 (accessed December 10, 2006). 68 Letter dated December 15, 1999 from the UN Secretary-General, op cit, p 38. 69 Kajelijeli (Judgment), op cit (ICTR Trial Chamber), para 809. See also Prosecutor v Kamuhanda (Judgment), op cit (ICTR Trial Chamber), para 628. 70 Prosecutor v Kayishema and Ruzindana (Judgment) of June 1, 2001, ICTR-95-1-A (ICTR Appeals Chamber), para 367. 71 Schabas, op cit, p 234. 72 Doc No ICC-ASP/1/3. 73 It is to be noted that art. 9(3) of the ICC Statute requires that “The Elements of Crimes and amendments thereto shall be consistent with this Statute.” 74 See the Introduction to art. 6 (Genocide) in the ICC Elements of Crime. 75 Notably, in Prosecutor v Krstić (Judgment) of April 19, 2004, IT-98-33-A at para 32, the ICTY Appeals Chamber wrote that “the offence of genocide does not require proof that the accused chose the most efficient method to accomplish his objective of destroying the targeted part.” 76 Prosecutor v Akayesu, op cit, paras 422, 452, 706 and 731–733. 77 He had been heard saying to the assailants, “Never ask me again what a Tutsi woman tastes like” and “you should first of all make sure that you sleep with this girl” referring to a Tutsi woman whom he had ordered his subordinates to kill: Akayesu, op cit, paras 422 and 452. 78 Ibid, para 451. 79 Prosecutor v Kajelijeli (Judgment and Sentence) of December 1, 2003, ICTR-98-44-AT (ICTR Trial Chamber), para 907; see also paras 823, 825, 833, 836, 842, 856, 897, 899, 904, 905. 80 Kajelijeli, op cit, 78, at para 681; see also paras 682, 683, 920, 923, 924, 936–938. 81 Art. 6(1) and art. 7(1), respectively, of the ICTR and the ICTY Statutes commonly provided as follows: “A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible for the crime.” 82 See Prosecutor v Tadić (Judgment) of July 15, 1999 (ICTY Appeals Chamber), para 185 et seq; Prosecutor v Furundžija (Judgment) of July 21, 2000 (ICTY Appeals Chamber), paras 115–120; Prosecutor v Delalić & Ors (Judgment) of February 20, 2001 (ICTY Appeals Chamber), paras 343, 365–366; and Prosecutor v Milutinović, Šainović & Ojdanić (Decision on Dragoljub Ojdanić's Motion Challenging Jurisdiction-Joint Criminal Enterprise) of May 21, 2003 (ICTY Appeals Chamber). 83 Prosecutor v Tadić (Judgment), op cit. 84 See Separate Opinion of Judge David Hunt in Prosecutor v Milutinović et al., op cit, para 6. 85 At para 220 of the Tadić judgment, the ICTY Appeals Chamber put the point as follows: “In sum, the Appeals Chamber holds the view that the notion of common design as a form of accomplice liability is firmly established in customary international law and in addition is upheld, albeit implicitly, in the Statute of the International Tribunal” (emphasis added). See also para 223 where the Appeals Chamber concluded that “the mode of accomplice liability under discussion is well-established in international law and is distinct from aiding and abetting.” 86 See Prosecutor v Milutinović et al., op cit, paras 19 and 20. See also Prosecutor v Stakić (Judgment) of July 31, 2003 (ICTY Trial Chamber II), para 432. This clarification is entirely consistent with the statements of the Appeals Chamber even in Tadić, paras 192 and 229. 87 In Prosecutor v Krnojelac (Judgment) of September 17, 2003, ICTY-97-25-A (ICTY Appeals Chamber), para 138, it was held that the prosecution must specifically plead joint criminal responsibility and the form of it that the prosecution founds its case against the accused. 88 Although not specifically addressing the different types of joint criminal enterprise developed by the ICTY and ICTR judges, Schabas considers it “plausible” that the ICC judges will be strongly influenced by the jurisprudence of the ad hoc tribunals on the subject: W. Schabas, Introduction to the International Criminal Court, 2nd edn (Cambridge: Cambridge University Press, 2004), p 104. 89 Which is, in any event, directly relevant to the concept of joint criminal enterprise, since a confederate in crime is an accomplice: see Schabas, ibid, pp 103–104. 90 See C. Eboe-Osuji, “‘Complicity in genocide’ versus ‘aiding and abetting genocide’: construing the difference in the Statutes of the ICTY and ICTR,” Journal of International Criminal Justice, Vol 3, 2005, p 63. 91 Specifically, art. 22(2) provides: “The definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted.”