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Arriving at Rwanda: Extension of Sexual Assault Prosecution Under the Statutes of the ad Hoc International Criminal Tribunals

Published online by Cambridge University Press:  17 February 2017

Patricia Viseur Sellers
Patricia Viseur Sellers*
Affiliation:
Office of the Prosecutor, International Criminal Tribunals for the Former Yugoslavia and Rwanda
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Abstract

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Type
Violence Against Women and International Law: Rape as a War Crime
Information
Proceedings of the ASIL Annual Meeting , Volume 90 , 1996 , pp. 605 - 611
Copyright
Copyright © American Society of International Law 2015

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References

The comments made herein are those of the author and do not necessarily reflect the views of either the Office of the Prosecutor or the United Nations.

1 UNSC Res. 827, UN SCOR, UN Doc. S/RES/827 (1993) (adopting the Statute of the International Criminal Tribunal for the Former Yugoslavia), reprinted in 32 ILM 1203 (1993); UNSC Res. 955, UN SCOR, UN Doc. S/RES/955 (1994) (adopting the annexed Statute of the International Criminal Tribunal for Rwanda), reprinted in 33 ILM 1598 (1994).

2 Charter for the International Military Tribunal (Nuremberg), 82 UNTS 270; Charter of the InternationalMilitary Tribunal for the Far East, 4 UST 27 (1946).

3 International Military Tribunal for the Far East, Dissent Judgment of Justice Pal (1953), at 624; RichardL. Leal, The Yamashita Precedent, War Crimes and Command Responsibility (1982).

4 Convention for the Amelioration of the Condition of Wounded and Sick in Armed Forces in the Field,Art. 50, 6 UST 3114, 75 UNTS 31; Convention for the Amelioration of the Condition of Wounded, Sick andShipwrecked Members of Armed Forces at Sea, Art. 51, 6 UST 3217, 75 UNTS 85; Convention Relative tothe Treatment of Prisoners of War, Art. 130, 6 UST 3316, 75 UNTS 135; Convention Relative to the Protectionof Civilian Persons in Time of War, Art. 147, UST 3516, 75 UNTS 287. All four of the Geneva Conventionscontain a grave breaches provision that does not explicitly mention rape or sexual assault.

5 ICRC, 3 Preliminary Document Submitted to the Commission of Government Experts 47 (1947) (Chapter III, Protection of Women).

6 ICRC, Aide Memoire (Dec. 3, 1992) cited in Theodor Meron, Rape as a Crime under International Law, 87 AJIL 426 (1993).

7 See, e.g., Report of the International Law Commission, UN GAOR, UN Doc. A/46/10 (1991). After World War II, the Draft Code formulations of the ILC became authoritative as an indication of the customary law status of accepted crimes against humanity that comprised part of Article 21 and, by reverse induction, of those crimes or prohibitions not universally accepted as crimes against humanity.

8 Report of the Secretary-General, para. 34, UN Doc. S/25704 (1993), reprinted in 32 ILM 1159 (1993).

9 Refer to the Oct. 6, 1995 revision of Rule 96 of the Rules of Procedure and Evidence, UN Doc. IT/32/ Rev. 96 (most recent revision as of April 1996). For the original Rules of Procedure and Evidence, see 33 ILM 484 (1994).

10 UNSC Res. 955, UN SCOR, UN Doc. S/RES/955 (1994) (adopting the annexed Statute of the International Criminal Tribunal for Rwanda), reprinted in 33 ILM 1598 (1994).

11 Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), Art. 4(2)(e), reprinted in 16 ILM 1391 (1977).

12 Report of the Secretary-General, para. 12, UN Doc. S/1995/134.

13 Id. at para. 12, n. 8.

14 Id. at para. 11.

15 Report of the International Law Commission, UN GAOR, UN Doc. A/49/10 (1994).

16 The Preparatory Committee on the establishment of an international criminal court met from March 25 to April 12, 1996. In the draft summary of the proceedings several delegations suggested that the list of crimes in Article 20, the Crimes Against Humanity Provision, should be identical to the list contained in the ICTY and ICTR statutes. Paragraph 17, entitled “(g) Rape“ proposed specifically that rape and other sexual assaults be enumerated in Article 20. Preparatory Committee on the Establishment of an International Criminal Court, UN Doc. A/AC.249/CRP/Add.3/Rev.l/(1996).

17 Postscript: The Articles on the Draft Code of Crimes against the Peace and Security of Mankind, as presented by the ILC to the UN General Assembly following its 48th session, explicitly addressed sexual assaults (Article 18j). And during the sessions of the Preparatory Committee on the establishment of an International Criminal Court in the spring and summer of 1996, delegates forwarded proposals that referred to sexual assaults as crimes against humanity.