Background Materials — Mass Rape

  • Relevant Treaties (in reverse chronological order)

  • Articles (in alphabetical order by author)

    • Natasha Affolder, Tadić, The Anonymous Witness and the Sources of International Procedural Law, 19 Mich. J. Int’l L. 445 (1998). SSRN paywall.

      Affolder discusses the ICTY’s Tadić decision in which it was deemed legitimate to have anonymous witnesses. She examines the influence of general principles of international law and the interplay between the ICTY and other international bodies when determining a question such as: does allowing anonymous witnesses allow sufficient fairness?

    • Xabier Agirre Aranburu, Sexual Violence Beyond Reasonable Doubt: Using Pattern Evidence and Analysis for International Cases, 35 Law & Soc. Inquiry 855 (2010). Wiley paywall, Cambridge Journals paywall.

      Aranburu discusses potential for use of pattern evidence in sexual violence crimes. Aranburu draws a parallel between the use of pattern evidence in prosecuting other types of crimes, such as genocide and discusses methods of evidence gathering and statistical analysis that may be used in prosecution in lieu of individual witnesses.

    • Kelly Dawn Askin, Gender Crimes Jurisprudence in the ICTR Positive Developments, 3 J. Int’l Crim. Just. 1007 (2005). SSRN paywall, Oxford Journals paywall.

      Askin argues that rape prosecutions at the ICTR has been largely inadequate because there has not been rigorous investigation of rape by the Prosecutor’s Office, resulting in rape acquittals, etc. Refers to Akayesu decision to demonstrate how rape can be categorized as genocide, especially when done in a widespread and systematic manner.

    • Amanda Beltz, Prosecuting Rape in International Criminal Tribunals: The Need to Balance Victim’s Rights with the Due Process Rights of the Accused, 23 St. John’s J. Legal Comment. 167 (2008). Available online, archived.

      Beltz argues that adequate prosecution of crimes sexual violence is hindered by lack of protection of victims, lack of gender-based training and sufficient procedural protections. She discusses the societal exposure and retribution faced by victims to argue for a different approach in prosecuting rape as a crime. Beltz urges a focused approach to prosecution of sexual violence crimes, beginning at the investigatory stage. She discusses jurisprudence of trying rape as a war crime.

    • Christine M. Chinkin, Due Process and Witness Anonymity, 91 Am. J. Int’l L. 75 (1997). JSTOR paywall.

      Chinkin's response to Monroe Leigh’s article (infra), argues that the interests of defense in a fair trial must be balanced with other considerations, such as witness safety.

    • Joseph L. Falvey, Jr., United Nations Justice or Military Justice: Which is the Oxymoron? An Analysis of the Rules of Procedure and Evidence of the International Tribunal for the Former Yugoslavia, 19 Fordham Int’l L.J. 475 (1995). Available online, archived.

      Falvey compares the fairness of trial proceedings in US courts-martial and the ICTY, and concludes that the US courts-martial system is more protective of the rights of the accused.

    • Aaron Fichtelberg, Democratic Legitimacy and the International Criminal Court: A Liberal Defence, 4 J. Int’l Crim. Just. 765 (2006). SSRN paywall.

      Fichtelberg addresses the criticism that the ICC is not democratic, in that it is not entirely accountable to any populace. He examines the substantive and procedural safeguards in place which protect individual rights.

    • John Hagan, Richard Brooks, and Todd Haugh, Reasonable Grounds Evidence Involving Sexual Violence in Darfur, 35 Law & Soc. Inquiry 881 (2010). Wiley paywall.

      The authors discuss the application of social science techniques to aid in prosecuting perpetrators in the ICC, in lieu of the difficulties of other testimony. They use the specific example of the State Dept’s Atrocities Documentation Survey in the charge of Al Bashir for rape and genocide.

    • Mark B. Harmon & Fergal Gaynor, Prosecuting Massive Crimes with Primitive Tools: Three Difficulties Encountered by Prosecutors in International Criminal Proceedings, 2 J. Int’l Crim. Just. 403 (2004). Oxford Journals paywall.

      Both Harmon and Gaynor worked in the Office of the Prosecutor of the ICTY. They discuss the problems faced by the ICTY, including the difficulties of obtaining evidence and the need to protect witnesses. They suggest that witnesses lack of confidence in an institution to protect them will in turn hurt the Prosecution, since future witnesses will not be willing to come forward.

    • K. Alexa Koenig, Ryan S. Lincoln, and Lauren E. Groth, Contextualizing Sexual Violence Committed During the War on Terror: A Historical Overview of International Accountability, 45 U.S.F.L. Rev. 911 (2011). SSRN paywall.

      This article examines American and international efforts to increase prosecution of rape and sexual violence. It examines the role of the ICC in these efforts, and provides some background into rape prosecution (procedural and substantive) in the ICC, as well as into relevant case law.

    • Tamara F. Lawson, A Shift Towards Gender Equality in Prosecutions: Realizing Legitimate Enforcement of Crimes Committed Against Women in Municipal and International Criminal Law, 33 S. Ill. U. L.J. 181 (2009). Lexis/Nexis paywall, SSRN paywall.

      Lawson provides a broad discussion of changes in attitudes toward rape prosecution, as well as procedural changes which reflect these changes.

    • Monroe Leigh, The Yugoslav Tribunal: Use of Unnamed Witnesses Against Accused, 90 Am. J. Int’l L. 235 (1996). JSTOR paywall.

      Leigh is pro defense and argues against the use of rules that are overly solicitous to witnesses.

    • Catharine A. MacKinnon, Crimes of War, Crimes of Peace, 4 UCLA Women’s L.J. 59 (1993). HeinOnline paywall, Lexis/Nexis paywall.

      MacKinnon highlights the gender-based nature of rape, emphasizing that rape is committed against women for specific reasons. She may be taking the stance that rape is targeted at women as a people and not simply a larger subset of “society”. However, MacKinnon appears to accept the idea that there is also an ethnic dimension to the issue of genocidal rape, along with a gender dimension.

    • Margaret Maisel, Have Truth and Reconciliation Commissions Helped Remediate Human Rights Violations Against Women? A Feminist Analysis of the Past and Formula for the Future, 20 Cardozo J. Int’l & Comp. L. 143 (2011). SSRN paywall.

      Maisel examines the gender implications of truth and reconciliation commissions. Although the article is not about international tribunals, it discusses the cultural impact of rape and treatment of women and rape victims, and how such attitudes toward women play a role in the rebuilding process.

    • Mercedeh Momeni, Balancing the Procedural Rights of the Accused Against a Mandate to Protect Victims and Witnesses: An Examination of the Anonymity Rules of the International Criminal Tribunal for the Former Yugoslavia, 41 How. L.J. 155 (1977).

      Momeni was an Associate Legal Officer for the ICTR. He examines the procedural rules of the ICTY and its case law, including the Tadić case and concludes that the Tadić decision was correct, albeit with some weaknesses. Momeni is in favor of anonymous witness testimony.

    • Peter Murphy, No Free Lunch, No Free Proof, 8 J. Int’l Crim. Just. 539 (2010).

      Written by ICTY Defense Counsel, the article is not about rape but argues against current evidence rules in international criminal courts, specifically the ICTY. Murphy argues against the contention that common law evidence rules are only pertinent where there is a jury; rather he claims that some common law rules of evidence are preferable. Murphy examines, in turn the origins of common law evidence rules, their current place in international criminal law, how rules of evidence promote the search of truth and will shorten trials, and then examines the rules of evidence in international criminal law. He proposes some evidentiary rules for international criminal courts, including one on hearsay, on confessions, on documentary evidence, and on judicial discretion. Finally, Murphy says he may be “common law traditionalist”.

    • Lori A. Nessel, Rape and Recovery in Rwanda: The Viability of Local Justice Initiatives and the Availability of Surrogate State Protection for Women that Flee, 15 Mich. St. J. Int’l L. 101 (2006). HeinOnline paywall.

      Nessel examines the cultural implications of rape, both in the act of rape itself and in the aftermath, with a focus on Rwanda. She examines the treatment of rape in both the ICTR and transitional/domestic justice mechanisms. The article is good for a cultural perspective on rape victims and their treatment when prosecuting the perpetrators.

    • Okechukwu Oko, The Challenges of International Criminal Prosecutions in Africa, 31 Fordham Int’l L.J. 343 (2008). Available online, archived.

      Oko analyzes the limits on criminal prosecution in Africa, both in international and domestic courts, as a solution to promoting justice and long-term rehabilitation.

    • Valerie Oosterveld, Lessons From the Special Court for Sierra Leone on the Prosecution of Gender-Based Crimes, 17 Am. U. J. Gender & Soc. Pol’y & L. 407 (2009). Available online, archived.

      Oosterveld discusses issues in the SCSL in the prosecution of gender-based crimes. She analyzes the need to balance the rights of the accused against the needs of witnesses.

    • Valerie Oosterveld, The Gender Jurisprudence of the Special Court for Sierra Leone: Progress in the Revolutionary United Front Judgments, 44 Cornell Int’l L.J. 49 (2011). Available online, archived.

      Oosterveld examines case law in the SCSL. Although the article does not discuss problems of anonymous witnesses, it provides a good overview of gender decisions in the SCSL.

    • Joanna Pozen, Justice Obscured: The Non-Disclosure of Witnesses’ Identities in ICTR Trials, 38 N.Y.U. J. Int’l L. & Pol. 281 (2006). Available online, archived.

      Pozen focuses on the ICTR, critiquing the ICTR’s nearly complete adoption of the ICTY witness protection rules, as the Rwandan situation did not involve similar wartime considerations. She also discusses cultural trends which may undermine the evidentiary considerations which are appropriate in other situations. And she suggests that balance between giving defendants a fair trial and protecting witnesses differs depending on the situation and culture facing the court.

    • David Alan Sklansky, Anti-Inquisitorialism, 122 Harv. L. Rev. 1634 (2009). Available online, archived.

      Sklansky provides a good contrast of the American system with international courts. He offers an interesting argument of the anti-inquisitorial nature of US criminal procedure, and how hostility to inquisitorial systems may be misplaced.

    • Jenia Iontcheva Turner, Defense Perspectives on Law and Politics in International Criminal Trials, 48 Va. J. Int’l L. 529 (2008). Available online, archived.

      Turner conducts research on the defense perspective in international criminal trials; concludes that most defense attorneys believe the trials to be more adjudicative proceedings than political instruments demanding accountability from whoever sits before them. Turner focuses on the justice-seeking role of courts, rather than on the rehabilitative role. Finally, Turner provides a general discussion of the purposes of international criminal trials, with an eye to the defense point of view.

    • Kweku Vanderpuye, Traditions in Conflict: The Internationalization of Confrontation, 43 Cornell Int’l L.J. 513 (2010). Available online, archived.

      Written by a former ICTY trial attorney for the prosecution, Vanderpuye directly addresses the question of the right to confrontation in the ICC. He compares the right of examination in the civil and common traditions, as well as in the context of the ICCPR and European Convention on Human Rights. And, finally, he argues that a bright line standard of admissibility is preferable, when considering the unique position of the ICC

    • Patricia M. Wald, Dealing with Witnesses in War Crimes Tribunals: Lessons from the Yugoslav Tribunal, 5 Yale Hum. Rts. & Dev. L.J. 217 (2002). Available online, archived.

      Wald draws on her personal experience as a judge at the ICTY to point out the problems of evidentiary rules which are overly solicitous to witnesses, especially to Prosecution witnesses. She examines procedural rules in conjunction with her personal experiences of witness testimony and the reliability of different types of evidence.

    • Patricia M. Wald, Rules of Evidence in the Yugoslav War Tribunal, 21 Quinnipiac L. Rev. 761 (2003). Available online, archived.

      Wald discusses her personal experience as a judge at the ICTY; she gives a general overview of the procedure of the ICTY and also discusses evidentiary rules. Wald discusses problems of hearsay, opinion testimony, and argues for more indicia of reliability early on in the process.

    • Andrew J. Walker, When a Good Idea is Poorly Implemented: How the International Criminal Court Fails to be Insulted from International Politics and to Protect Basic Due Process Guarantees, 106 W. Va. L. Rev. 245 (2004).

      Walker has a section which discusses the due process shortcomings of denying a right to defendant cross examination, and suggests some remedies which could be implemented by the ICC.

  • Books and Other Materials (in alphabetical order by author or publisher)

    • Beth Goldblatt & Shiela Meintjes, Gender and the Truth and Reconciliation Commission, a submission to the Truth and Reconciliation Commission, (May 1996). Available online, archived.

      The study includes the impact of rape, submission to South Africa’s Truth and Reconciliation Commission.

    • Anna M. Haughton, The balancing of the rights of the accused against the rights of a witness in regard to anonymous testimony, Memo, December 2001. Available online, archived.

    • Prosecutor v. Jean Paul Akayesu, Case No. ICTR-96-4-T, Judgment (September 2, 1998). Available online, archived.

    • Prosecutor v. Tadić, Case No. IT-94-1-t, Sentencing Judgment (ICTY, July 14, 1997). Available online, archived.

    • Prosecutor v. Tadić, Case No. IT-94-1-l, Decision on Defense Motion for Interlocutory Appeal on Jurisdiction (ICTY, Oct. 2, 1995). Available online, archived.

    • Clare McGlynn & Vanessa E. Munro, Eds., Rethinking Rape Law: International and Comparative Perspectives, (London: Routledge, 2010).

      This book discusses problems of prosecuting rape in international criminal courts, including ICC, ICTY, ICTR, SCSL. It includes specific discussions of the cultural and social obstacles that prevent rape victims from testifying in court.

    • John Mutamba & Jeanne Izabiliza, The Role of Women in Reconciliation and Peace Building in Rwanda: Ten Years After Genocide 1994-2004 (May 2005). Available online, archived.