This material is reproduced with permission from the copyright holder. Please cite as 60 Albany Law Review 883.

"The horror of that moment," the King went on, "I shall never, never forget!"

"You will, though," the Queen said, "if you don't make a memorandum of it." ¹

The International Criminal Tribunal adjudicating war crimes committed on the territory of the former Yugoslavia has traversed unique thresholds since its creation. ² It is the first international ad hoc tribunal since the Nuremberg trials; the first comprehensive criminalization of acts of violence committed during internal and external war deemed sufficiently abhorrent to warrant international regulation; it is a process which has sharpened the boundaries of international humanitarian law and is casting light on the murky shadows of sexual violence during warfare. ³ The Yugoslav conflict is exceptional because of the way in which violence against women [End of Page 883] has been widely exposed as a method and means of warfare, not ancillary to military objectives, but innately linked to them. ⁴ Much has been made of the media attention devoted to the sexual plunder of women during this conflict. ⁵ Equally, much energy was directed at ensuring that the substantive definition of criminal offenses in the Statute of the Tribunal ⁶ would adequately recognize the gravity of rape and sexual offenses against women. ⁷ The starting point of this Article is the inclusion of substantive legal recognition for the seriousness of sexual offenses committed against women during the Yugoslav conflict in the Statute of the Tribunal. Its examination, however, is not on the merits of these legal claims, but rather on the ancillary rules which support them.

The rules that support legal claims of sexual offenses are the Rules of Procedure and Evidence, ⁸ the existence of which is facilitated by Article 15 of the Statute of the Tribunal. ⁹ Little attention has been [End of Page 884] paid to the radical changes wrought by these Rules to the criminal adjudication of sexual offenses against women in the international legal arena. ¹⁰ This Article argues that substantive legal recognition of sexual offenses in their own right would have achieved very little, if the procedural mechanisms which apply to the conduct of criminal cases had not been subject to drastic re-evaluation. The rules of evidence which go to the trial of sexual offenses illustrate a chink of international recognition for the significance of process in the institutional treatment of gendered violence. ¹¹

Existing rules of evidence regulating the conduct of criminal trials concerning gendered violence have been subject to vocal and persistent criticism in many jurisdictions for their perpetuation of unstated social understandings regarding female and male sexuality. ¹² Rape and sexual assault trials have been marked by the lack of female perspective in the courtroom and the application of a male standard. ¹³ As Susan Edwards points out: "It is in the rules of evidence and procedure that we find the reproduction of the precipitating construction of female sexual behaviour that makes a [End of Page 885] charge of assault by the complainant difficult to sustain." ¹⁴ The traditional doctrines of defense reflect this, i.e. that the woman should fend off a violent attack "like a man" or be considered unchaste and thus unworthy of legal protection for violation. ¹⁵ The "fresh complaint" doctrine reflects the difficulty for women in making a valid claim; the myth that the truly virtuous woman would immediately complain of any sexual violation. ¹⁶ Such views clearly do not account for the fear and reluctance of many women in identifying a personal violation, who publicly fear the prejudice, hostility and disbelief which would follow. ¹⁷ The Tribunal faced a dual task. First, to respond to the lacuna in legal definition of the forms of defilement against women as a matter of law during warfare. Second, the task of ensuring that the courtroom experience would be one that was fair to the victims of sexual violence while protecting the due process rights of any accused charged with sexual offenses.

This Article, examines how far international law has moved in its treatment of gendered violence as a result of the creation of the War Crimes Tribunal. Part I of this Article examines the Statute itself, outlining the basis for prosecuting sexual offenses. Part II looks to the general rules of evidence and procedure which directly concern the protection and treatment of witnesses and victims. Part III [End of Page 886] reviews the specific rules concerning sexual offenses contained in the Statute of the Tribunal. Initially, Part III analyzes whether sophisticated and "victim sensitive" procedural mechanisms will reshape general understandings of the nature of gendered violence during armed conflict. This section further assesses whether rejection of traditional rules associated with the proof of sexual offenses such as the corroboration requirement, cautionary instructions and the dismissal of evidentiary rules related to prior sexual conduct by the victim--which placed the violated woman as much on trial as the defendant--have assisted in re-evaluating the status of violence directed at women under international criminal law. The conclusion posits the view that these procedural innovations may have the potential for reshaping cultural and legal attitudes towards the occurrence of sexual violence during armed conflict.

Underpinning any discussion of the Rules of Procedure and Evidence is an understanding of the substance and structure of the Statute of the Tribunal. Prior to its formalization, as accounts of systematic and gross gender violations emerged from the conflict in the former Yugoslavia, the lack of comprehensive legal sanction for sexual violence during warfare was apparent. ¹⁸ There exists an ongoing academic debate as to the international legal status of violence against women, and specifically that of rape under the laws of war. ¹⁹ For example, some would argue that rape by recognized [End of Page 887] combatants had been technically prohibited by the laws of war prior to the positivist enunciation of the rules of waging war under the Geneva Conventions and the Additional Protocols. ²⁰ The specific prohibition for the crime of rape is found in the Fourth Geneva Convention, ²¹ and at Articles 76(1) and 85 of the First Protocol Additional to the Geneva Conventions. ²² Its prohibition under the Geneva Conventions defines rape as an offense against honor rather than an offense of a distinctly violent and sexual nature. ²³ Thus, not only have all-encompassing sexual crimes against women been excluded from legal prohibition under the laws of war, but when included they have been facets of male status violation.

What has concerned many observers is the low status of prohibitions for sexual violations within the hierarchy of humanitarian law offenses. ²⁴ Many predicted that ensuring [End of Page 888] accountability for the atrocities committed against women would require creative interpretation to allow crimes of sexual violence to fit the category of "grave breaches" or serious offenses, ²⁵ which give rise to international jurisdiction under the Geneva Conventions. ²⁶ Thus, commentators such as Theodor Meron argue that "[u]nder a broad construction, Article 46 of the Hague Regulations can be considered to cover rape . . . ." ²⁷ Though not specifically included as a "grave breach" of the Geneva Conventions, rape was a potential candidate on the basis that the list was not intended to be exhaustive and the gravity of some sexual offenses merited their inclusion under a liberal construction of existing jurisprudence. ²⁸ In the same vein, others argued that rape might be part of the proscribed tactics covered by Article II of the Convention on the Prevention and Punishment of the Crime of Genocide, and a potential infraction of the customary laws of war. ²⁹

Such an approach would have achieved little. It was vital that this International Tribunal acknowledge and incorporate the gravity of sexual offenses in their own right into its substantive law. Subsuming female- centered violence into existing categories was not enough, as that would fail to concede the specific nature, effect, and rationale of these offenses. It was of paramount importance that the norms transgressors were to be held to by the Tribunal did not [End of Page 889] exclude the particular experiences and indignities suffered by women in war.

The Statute of the Tribunal has gone a considerable way to achieve that end. Its general provisions further leave room for crimes of a gendered nature to be read into its diffuse categories. Article 2 outlines the power of the Tribunal to prosecute "grave breaches" of the 1949 Geneva Conventions. ³⁰ Torture and inhuman treatment are prohibited under Article 2(b). ³¹ Concurrent jurisprudence from the European Convention system has acknowledged rape to constitute "inhuman treatment." ³² Rape may unequivocally violate the international prohibitions against "torture" under certain circumstances, specifically where the act is carried out by an official with a political or public purpose. ³³ Article 2(c) also proscribes prosecution for "wilfully causing great suffering or serious injury to body or health." ³⁴ This language is expansive enough to include various kinds of gendered violence which have caused physical and mental anguish to women during the conflict.

Article 4 of the Statute is concerned with the prosecution of the crime of genocide. ³⁵ For the first time, the relationship between violent sexual acts directed at the women of a national, ethnic, racial or religious group and the destruction of that entity are recognized. [End of Page 890] ³⁶ This provision is legal acknowledgment that sexual violence in war serves a functional purpose in destroying an opponent's culture by defiling an essential component of society, ³⁷ its women (as symbolic of cultural and bodily integrity) and its childbearers (as its future). This Article creates grounds for the prosecution of genocidal acts where serious bodily or mental harm is caused to members of the group, ³⁸ and where measures are imposed to prevent births within the group. ³⁹

Finally, Article 5 of the Statute endorses the position that rape constitutes a crime against humanity. ⁴⁰ This is the first primary recognition given to the crime of rape by an international tribunal. "Despite the Nazi and Japanese practices of forced prostitution and rape during World War II, the [[International Military Tribunal] did not deal with the crime of rape." ⁴¹ Control Council Law Number 10 included rape in the list of crimes against humanity, but the lesser status of the Council Laws left unresolved the status of rape as a serious violation of the laws of war in its own right. ⁴² It should be noted that the offense of "rape" has not been defined precisely by international law. A broad definition is crucial to ensuring that the variety of invasive acts which a woman considers to constitute sexual defilement is accounted for by the category of rape. Thus, it remains to be seen whether the Tribunal will adopt a broad definition of the term so that penetration alone will not become the defining facet of whether a rape has in fact taken place. ⁴³

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The Statute contains the ground rules to facilitate prosecutions. In respect to gendered crimes, some positive thresholds have been fixed. The success of their application not only rests on the quality of the paper standards, but on a mutual understanding by all the judges that their operation in a meaningful way is vital.

The Rules of Procedure and Evidence are exceptional to the extent that they are more "victim friendly" than most parallel domestic criminal codes. ⁴⁴ This focus was significantly augmented by strong non-governmental lobbying throughout the process of their creation. The rules relevant to the investigation and trial of sexual offenses can be divided into three broad categories: first, the rules related to the protection and support of victims and witnesses; ⁴⁵ second, the general rules governing the presentation of evidence which envisage and take account of the specialized demands of sexual offenses; ⁴⁶ and, finally, those particularized rules pertaining to the adjudication of sexual offenses. ⁴⁷

Rule 34 creates a victims' and witnesses' unit set up under the authority of the Registrar of the Tribunal. ⁴⁸ Its responsibility is to provide counseling and support for victims and witnesses. In particular, it is charged with providing this support in cases of rape and sexual assault. The creation of specialized support services is vital to the successful prosecution of gendered violence. The experience in many jurisdictions is that women frequently under [End of Page 892] -report sexualized violence for a variety of reasons, ⁴⁹ not the least of which is the perception that the legal process is a hostile and unsupportive environment within which to press their claims. The need for such support is heightened by the nexus of protracted conflict and the politicization of sexual violence against women. The horrors that many women experienced during this conflict are augmented by the insight that their cultural and social mores were as much the target of sexual violation as their physical bodies. The unit and its services may also be the start of acknowledging on an international level the premise that fair legal process is not simply achieved by utilitarian utilization of the subjects of violation by formal legal proceedings, establishing the guilt or innocence of alleged perpetrators. ⁵⁰ Instead, the process affirms its own responsibility to the victims by seeking to aid the restoration of balance and normality in their lives. This occurs directly through the facilitation of resources to which individual victims might not otherwise have access. This broader sense of obligation is made more cogent by the fact that the Tribunal proceedings arose from the identification of wider goals by the international community, the drawing of an international bright line on unacceptable behavior during war. The individual witnesses and victims, prepared to allow their stories to fill the spotlight of scrutiny, are the facilitators of that line-drawing. Correspondingly, the international legal process must be cognizant of the additional burdens that extra-territorial legal scrutiny places upon them and respond appropriately. Many victims and witnesses will be outsiders to the legal process in which they participate. Many will have to leave home and family to give evidence in unfamiliar and imposing surroundings. Some will have been living in exile, having escaped the conflict and sought sanctuary abroad. Each requires support systems and assistance. This is the broader duty that the Tribunal takes on board in the uncommon circumstances of its international jurisdiction.

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Rule 34 also expressly identifies the need to appoint qualified women to the staff of the victims' and witnesses' unit. ⁵¹ Non-Governmental Organization (NGO) submission to the judicial chamber stressed the significance of equal gender representation, specifically the need to have those who dealt with victims of sex crimes to be primarily women. ⁵² While the rules do not include a quota requirement for female representation, the inclusion of a "consideration" requirement is some movement toward a recognition of what the specific needs of female victims may be in these circumstances. ⁵³

The responsibility to protect is also affirmatively acknowledged under Rule 69. ⁵⁴ Subject to Rule 75, the Court may order the non-disclosure of the identity of victims or witnesses at risk. ⁵⁵ Non-disclosure is particularly significant to victims of sexual violence. Many women will be reluctant to come forward to testify. Some will wish to obliterate the experience from their memory, while others feel degraded and ashamed by their experiences, fearing social exclusion should their experiences become public knowledge. ⁵⁶ Some experts have reported that many women victims have felt exploited by media and international experts who seek their stories, but have little sensitivity to the trauma that additional publicity may bring to them. ⁵⁷ Legal process must not become another trauma for the victim. Under the non-disclosure rule, the Court has the means to ensure that a woman's identity is protected first on the grounds of the individual fears of the victim, but equally as an acknowledgment [End of Page 894] of the social and religious mores that may be transgressed by recounting the facts of sexual violence. While it is important to balance the rights of the accused to hear all the prosecution evidence and cross-examine witnesses, comprehensive victim protection is essential to ensure that sexual violence actually reaches the Court's hearing.

Rule 75 also allows proceedings to be held in camera. ⁵⁸ Unresolved tensions in the former Yugoslavia, including the lack of free access across the four political entities recognized under the Dayton agreement, ⁵⁹ the failure to implement the provisions related to the return of refugees, and the continuing liberty of large numbers of indicted war criminals may foreordain that many witnesses and victims will fear giving their evidence in open court. ⁶⁰ The rules pertaining to in camera proceedings are in line with evolving international standards on the protection of victims. The U.N. Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, ⁶¹ provides that the judicial system should take "measures to minimize inconvenience to victims, protect their privacy, when necessary, and ensure their safety, as well as that of their families and witnesses on their behalf, from intimidation and retaliation." ⁶²

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The arrangements for expediting evidence by deposition facilitate the presentation of evidence which might not otherwise come before the Court. Rule 90(a) in tandem with Rule 71 allows that at the request of either party the trial chamber may, "in exceptional circumstances" order that a deposition be taken for use at trial. ⁶³ This mechanism also safeguards the rights of the accused. It means that the Court may hear information known to persons who might not otherwise volunteer to come to the Tribunal to present direct evidence for fear of self-incrimination or on the grounds of intimidation.

In its general provisions, the judicial chamber, by agreeing to the Rules of Procedure and Evidence, has also demonstrated a heightened awareness of the pitfalls of traditionally accepted rules which have the specific effect of marginalizing women within the criminal justice system. From the outset, the rules affirm that the chamber shall not be bound by national rules of evidence. ⁶⁴ This affirmation is a persuasive statement that the Court believes itself capable and competent to institutionalize new approaches without being hindered by the clarion call that new departures go against national practices.

Rule 75(c) of the Rules of Procedure and Evidence holds that the chamber shall, where it is necessary, control the manner of questioning to avoid any harassment or intimidation of witnesses. ⁶⁵ Exercising greater control on conduct within the courtroom portends well for the protection of vulnerable witnesses. Sexual assault cases are frequently characterized by aggressive cross-examination of the female complainant, a means of withholding validation of the woman as a credible witness. ⁶⁶ Equally, the telling of the story of sexual assault under the potential distortions of cross-examination, may turn the woman's violation into a pornographic vignette. The consequences for the victim are that the trial as the second violation is more than mere metaphor. With appropriate implementation by presiding judges, it offers a means to challenge the manner in which [End of Page 896] sexual offense trials become focused on the conduct of the victim, a trial of female accountability rather than male responsibility. ⁶⁷

The general principles on the admissibility of evidence are contained in Rule 89. ⁶⁸ The provisions allow that the judicial chamber may admit any relevant evidence which it deems to have probative value. ⁶⁹ Nonetheless, such evidence may be excluded if its inclusion would undermine the need to ensure a fair trial. ⁷⁰ There is every possibility that the nature of some evidence coming before the Tribunal will be piece-meal and fragmented. This may be especially true of evidence which goes to establishing a systematic pattern of group behavior transgressing the laws and customs of war. Under Rule 93, the Rules of Procedure and Evidence identify the need to accommodate evidence of a consistent pattern of illegal conduct. ⁷¹ It is only through the amalgamation of widespread sources and types of evidence that the full extent and scale of sexual violation during this war may be revealed. This broad standard may result in a loosening of evidential classifications which under common law rules would exclude testimony categorized as hearsay. The potential flexibility of Rule 89 could prove to be a vital mechanism for processing evidence of extensive sexual violence which occurred during the course of this armed conflict. Clearly, this discretion must be exercised in a manner consistent with safeguarding the due process rights of individual defendants on trial for specific offenses.

Rule 93 pertaining to legal accountability for persistent violations of international humanitarian law is an important addition to these rules. ⁷² The Secretary-General's Report Pursuant to Resolution 808 recognized the systematic and widespread nature of rape and other forms of sexual assault during the conflict in the territory of the [End of Page 897] former Yugoslavia. ⁷³ Criminal procedure in its usual domestic context is correctly focused on individual responsibility for identified acts, conforming to the principle of "nullum crimen sine lege, nulla poena sine lege." ⁷⁴ Nonetheless, where the actions of an individual clearly point to a pattern of transgressive behavior, unless a legal device exists to disclose associated information, the focus on individual responsibility may eschew an expanded picture of liability. There is a tension between traditional models of legal accountability subject to strict rules of disclosure and admissibility, which seek to vindicate the legal rights of the accused and the need for accountability in its expansive sense. This means not simply identifying what a particular accused may be held legally responsible for, but addressing a societal need to account for individual violations within an all-inclusive framework of political and military imperatives. Rule 93 is practical recognition that violations of the laws of war are not exceptional or isolated. ⁷⁵ It may provide the formula to establish that sexual violation during warfare has a functionality which serves as a normative discourse for combatants. ⁷⁶ While sexual offenses are not the locus of this Rule, it nonetheless holds great potential for the manner in which they will be treated by the Tribunal.

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Finally, Rule 101 outlines the sanctions following successful prosecution for offenses listed in the Statute of the Tribunal. ⁷⁷ This Rule provides that when sentencing, the trial chamber shall take into account any aggravating circumstances that accompanied the perpetration of the offence. ⁷⁸ Given the empirical information available, it seems that many acts of sexual violation were carried out publicly as a means of defiling both woman and community simultaneously. ⁷⁹ Rapes frequently took place in front of family members, including small children and spouses. ⁸⁰ Women were held in prolonged detention where they were repeatedly assaulted and sexually violated. ⁸¹ Women impregnated by sexual assault were kept in detention until their pregnancy was so far advanced that they were unable to seek abortion services had they so desired. ⁸² All these contextual circumstances evidently constitute aggravating circumstances to the sexual act itself. The possibility that this can be accounted for in the sanction given out to offenders offers some measure of appropriate redress for the extremity of violation experienced by women during the conflict.

The centerpiece of the rules in relation to the treatment of egregious sexual violation lies in Rule 96. ⁸³ The Rule specifically [End of Page 899] relates to the presentation of evidence in cases of sexual assault. ⁸⁴ The first significant departure from the domestic practice of many States is that the Trial Chamber will not require corroboration of the victim's testimony. ⁸⁵ In many jurisdictions, the evidentiary distrust of female complainants was illustrated by the established norm that the victim's testimony be corroborated in order to support a conviction. ⁸⁶ As the most private of crimes, rape and sexual violence rarely generate a public audience. ⁸⁷ Thus, corroboration concentrates on the evidence of force, resistance, identity, and character of the victim herself. ⁸⁸ In essence, corroboration was the legal entrenchment of distrust based on the premise that women lie. ⁸⁹ The formal commitment to non-corroboration and the exclusion of a cautionary requirement is a significant advance by the [End of Page 900] Tribunal. ⁹⁰ It confirms the formal international standards of equality between the sexes. ⁹¹ It validates the principle that formal definitions of crime are not sufficient to ensure accountability for infraction. ⁹² The reformation of these rules in an international forum may prevent the victims of gendered crime from experiencing violation a second time. Equally, it may intensify a re-evaluation of domestic evidentiary standards. There is also the faint hope that such rules will assist in the creation of generally accepted international standards on the adjudication of sexual offenses. ⁹³

Rule 96 dispenses with the privilege of admitting the prior sexual conduct of the victim in open court. ⁹⁴ The relevance of a woman's sexual past has been as controversial as the corroboration requirement in many jurisdictions. ⁹⁵ The implied claim of such evidence is that a woman with a sexual history was an unreliable witness. ⁹⁶ As Estrich points out, "[i]n a general sense, the belief that a woman's sexual past is relevant to her complaint of rape reflects, as does the resistance requirement, the law's punitive celebration of female chastity and its unwillingness to protect women [End of Page 901] who lack its version of virtue." ⁹⁷ The punishment of rape in warfare could be thwarted by the importation and validation of strategies, the goal of which was to make the victim defend her past behavior, circumventing scrutiny of the sexual violation itself. The anecdotal and empirical evidence available suggests that during the Yugoslav conflict, women were assaulted and raped by men they knew, by neighbors and acquaintances. ⁹⁸ In this context, there was perceptible danger that the proximity of pre-war relationships would give defendants the intimate knowledge and capacity to exploit their victims' prior relationships as a means to justify their own behavior. Rule 96 has judiciously impeded that possibility, and goes some way towards addressing misconceptions about women, their credibility, roles, and sexuality. ⁹⁹

Finally, Rule 96 outlines the parameters under which consent may be raised as a defense to the charge of rape or sexual assault. ¹⁰⁰ The consent defense has been reproached for facilitating a loophole whereby legal emphasis is placed on what the man thinks, rather than what the woman does in the circumstances of a sexual violation. ¹⁰¹ Rule 96 starts from the premise that consent cannot be a defense if the victim had experienced or had reason to fear "violence, duress, detention or psychological oppression." ¹⁰² It remains to be seen whether the fact of ongoing armed conflict is sufficient per se to establish such fear or oppression. Also unclear is whether the victim must demonstrate that her attacker would have known of her fear, i.e. whether that should have been communicated in order to negate any impression that consent was given to sexual activity. At face value, the provisions suggest that where the victim gives evidence of credible fears for the safety of herself or others, testimony which goes to consent will not be admitted. ¹⁰³ It remains to be seen what standards will be set to assess the credibility of the victim's claims. Once again, the workings of this provision will test how far the Tribunal has moved to validate the [End of Page 902] credibility of female complainants, and to avoid the myths and stereotypes about women's sexuality which have been traditionally sanctioned by law.

Rule 96(iii) outlines the procedure by which evidence of consent may be admitted. ¹⁰⁴ The accused will be required to satisfy the Trial Chamber in camera that the evidence of consent is both relevant and credible. ¹⁰⁵ However, the danger of this mechanism is that even if the evidence is excluded, the Chamber will have been exposed to information about the victim which may diminish her overall credibility as a witness. As the victim has no right of legal representation, any voir dire consent hearing does not address her interests. Yet, evidence admitted subsequent to in camera proceedings may greatly affect her character and reputation. The lack of standing for the victim in the courtroom exacerbates the perception that the structure of the consent provisions promote a state of law in which stereotypical myths about female sexuality are validated by the judicial process.

The Rules of Procedure and Evidence substantially assist in reinforcing the appropriateness of expanding the categories of legal responsibility for sexual violence in warfare. The lack of legal pedigree for the prosecution of such acts in international law ¹⁰⁶ made it imperative that the Tribunal establish a suitable procedural structure within which to adjudicate alleged violations. What makes this task doubly important is the equal lack of credible domestic practice to draw upon in ascertaining and implementing sensitive trial practice in adjudicating sexual violence. ¹⁰⁷ Setting international standards that move away from domestic defects may have [End of Page 903] a knock-on effect, which filters the international standards back to the domestic courtrooms of observing and participating States. ¹⁰⁸

The lack of international interest in acknowledging that violence against women is pervasive and extensive heightens the significance of these rules. While the Convention on the Elimination of Discrimination Against Women (CEDAW) and General Assembly Resolutions ¹⁰⁹ have moved issues of violence onto the agenda of United Nations, female centered violence is still a peripheral matter to most States, and admonition for its perpetuation has negligible effect. It seems that each small step is a leap, as far as the articulation of female centered violence is concerned. Taking gendered violence out of the feminine arena of the CEDAW Committee and placing it high on a general agenda of international accountability greatly facilitates heightening its profile and affirming its seriousness. The danger is that being placed on the agenda does not confirm a place on the hierarchy. One lesson from Nuremberg is that while rape was not charged, sexual forms of torture, including rape, were presented at the trials (as they were at Tokyo), but little or no international memory was created about the gravity of these acts as an organized and logical part of the conduct of war. Sexual violence has had a history of omission in international law. Most often it is absorbed as a part of the cluster of violence that accompanies the waging of aggressive war, and its particular identity is obliterated. Part of the challenge that faces those interested in the realignment of international humanitarian law to account for the persistent recourse to violence against women, is to constantly reassert the centrality of law in confronting such violations. This means not only moving to have the positive prohibitions reflect the inclusion of gendered violence, but to have the supporting structures reflect the same prohibitions. This necessitates prosecutorial mechanisms that both respect and protect the accused's rights, while simultaneously correcting gender bias. The Rules of Procedure and Evidence are the first step in this latter venture. Their success, as well as that of the Tribunal as a whole, rests on the willingness of [End of Page 904] the international community to ensure that it has defendants to try, witnesses to hear, and that it listens to the victims.

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^* Schuman Scholar, European Parliament, Associate, Columbia University School of International and Public Affairs. My thanks to Jelena Pejic for supplying outstanding background material, both on the structure of the International Tribunal itself and the domestic legal systems of successor states to the Former Yugoslavia. Further thanks to Colm Campbell, University of Galway, and Oren Gross, Tel-Aviv University Law Faculty. The Article was written with particular thought to Owen Henry Daniels. Responsibility for the final product remains entirely with the author.

¹ LEWIS CARROLL, THROUGH THE LOOKING-GLASS 142 (London, Allan Wingate 1954).

² The Security Council established the International Tribunal pursuant to U.N. SCOR, 48th Sess., 3175th mtg. at 1, U.N. Doc. S/RES/808 (1993).

³ See Bosnia-Herzegovina: Tribunal Defines Rape as a War Crime, FACTS ON FILE WORLD NEWS DIGEST, July 11, 1996 (reporting on the first indictment that marked the inclusion of rape in the definition of war crimes); For the First Time, U.N. Tribunal Defines Rape as a War Crime: HUMAN RIGHTS: Eight Bosnian Serb Military and Police Officers are Indicted in Connection with Assaults on Muslim Women During the Bosnian War, N.Y. TIMES, June 28, 1996, at A1 [hereinafter For the First Time] (reporting the charges of eight Bosnian Serb military and police officers in connection with the rapes of Muslim women in the Bosnian war "between April 1992 and February 1993 in or near Foca in southeastern Bosnia").

⁴ See generally AMNESTY INTERNATIONAL, BOSNIA-HERZEGOVINA: RAPE AND SEXUAL ABUSE BY ARMED FORCES (1993) (indicating that the rape of Muslim women is systematic, deliberate and used as a warfare weapon); WAR CRIMES IN BOSNIA-HERCEGOVINA: A HELSINKI WATCH REPORT (1992) (referring to the sexual offenses as an "ethnic cleansing" and considering such acts as a form of genocide); see also THE INTERNATIONAL WOMEN'S HUMAN RIGHTS CLINIC OF THE CITY UNIVERSITY OF NEW YORK, GENDER JUSTICE AND THE CONSTITUTION OF THE WAR CRIMES TRIBUNAL PURSUANT TO SECURITY COUNCIL RESOLUTION 808 (1993) (discussing gender-based violence in the context of war crimes).

⁵ See William Drozdiak, Serbs Raped 20,000, EC Team Says: Assaults in Bosnia Part of 'Cleansing,' WASH. POST, Jan. 9, 1993, at A12 (indicating that the rape of Muslim women was to terrorize them, invade their communities, and "drive them from their homes"); see also For the First Time, supra note 3, at A1 (describing the rapes by the Serbs as strategic acts of warfare to terrorize and traumatize Muslim women, many of them being suicidal).

⁶ See U.N. SCOR, 48th Sess., 3175th mtg. at 1, U.N. Doc. S/RES/808 (1993).

⁷ See, e.g., Submission of the National Alliance of Women's Organizations to the Secretary General and Others, Mar. 31, 1993, in 2 VIRGINIA MORRIS & MICHAEL P. SCHARF, AN INSIDER'S GUIDE TO THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA 399 (1995) [hereinafter MORRIS & SCHARF] (positing that rape lacks the recognition as one of the "gravest offenses against human rights"); Proposals Relating to the Prosecution of Rape and Other Gender-Based Violence to the Judges of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991, Feb. 3, 1994, reprinted in MORRIS & SCHARF, supra, at 611 (advising that the Tribunal's prosecutorial rules not be based on sexually discriminatory or stereotypical misconceptions in prosecuting war crimes of sexual violence).

⁸ International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991: Rules of Procedure and Evidence, U.N. Doc. IT/32 (1994), amended by U.N. Doc. IT/32/REV.1 (1994), U.N. Doc. IT/32/REV.2 (1994), and containing the most recent changes set out in U.N. Doc. IT/32/REV.3 (1995), reprinted in 5 Crim. L.F. 651 (1994), and in 33 I.L.M. 484 (1994) (without amendments) [hereinafter Procedure and Evidence].

⁹ The Statute of the Tribunal was originally published as the Annex to the Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), U.N. Doc. S/25704, (1993), reprinted in 32 I.L.M. 1163 (1993). Article 15 states: "The judges of the International Tribunal shall adopt rules of procedure and evidence for the conduct of the pre-trial phase of the proceedings, trials and appeals, the admission of evidence, the protection of victims and witnesses and other appropriate matters." U.N. SCOR, 3175 mtg. at 22, U.N. Doc. S/RES/808 (1993).

¹⁰ See MORRIS & SCHARF, supra note 7, at 399 (stating that rape has not been effectively prosecuted, despite its inclusion in the definition of war crimes).

¹¹ See Rhonda Copelon, Surfacing Gender: Reconceptualizing Crimes Against Women in Time of War, in MASS RAPE: THE WAR AGAINST WOMEN IN BOSNIA-HERZEGOVINA 197, 208-10 (Alexandra Stiglmayer ed., 1994) [hereinafter MASS RAPE]. See also Procedure and Evidence, supra note 8 (setting out the processes by which a crime under the Tribunal's jurisdiction will be tried, including sexual offenses against women); infra Part III (analyzing Rule 96 on the admission of evidence in sexual assault cases in the international arena).

¹² See Susan Estrich, Rape, 95 YALE L.J. 1087 (1986) (arguing that the law on rape has not only reflected "the restrictive and sexist views of our society; it has legitimized and contributed to them"); see also SUSAN BROWNMILLER, AGAINST OUR WILL: MEN, WOMEN AND RAPE 347 (1975) (recognizing the persistent view in the law that the woman who fails to immediately come forth publicly is suspicious); ANDREA DWORKIN, INTERCOURSE (1987) (discussing intercourse as the source of female oppression); SUSAN S.M. EDWARDS, FEMALE SEXUALITY AND THE LAW 49 (C.M. Campbell & Paul Wiles eds., 1981) (arguing that the law of evidence and procedure in relation to rape trials continues to presume the female provoked the assault); Frances E. Olsen, The Family and the Market: A Study of Ideology and Legal Reform, 96 HARV. L. REV. 1497 (1983) (positing that the legal reforms regarding female victimization and aiming to improve the status of women fail because such reforms merely perpetuate domination and hierarchy under the persistence of the male/female dichotomy).

¹³ See BROWNMILLER, supra note 12, at 369-74 (analyzing the male assumption in evidentiary rules that a woman has the tendency to lie about rape and how such assumptions in the law preclude many rape prosecutions); EDWARDS, supra note 12, at 49 (stating that "procedural rules have evolved with the protection of the (male) defendant in mind").

¹⁴ EDWARDS, supra note 12, at 49.

¹⁵ See id. at 59 (indicating that an unchaste female is presumed to have consented to the rape); see also Brownmiller, supra note 12, at 360-61 (addressing the argument that women should fight against an act of rape for acquiescence and cooperation affords no guarantee of protection); Estrich, supra note 12, at 1139 (explaining that corroboration of rape requires proof of forceful resistance).

¹⁶ See Estrich, supra note 12, at 1139-40 (defining the "fresh complaint" rule and acknowledging the difficulties such a rule imposes on victims of rape in reporting the crime); Susan Estrich, Sex at Work, 43 STAN. L. REV. 813, 815-16 (1991) (explaining that only in the crime of rape does the law "impose obligations of actual resistance, corroboration, and fresh complaint on [women]"); Kathryn M. Stanchi, The Paradox of the Fresh Complaint Rule, 37 B.C. L. REV. 441, 443-46 (1996) (historically analyzing the "fresh complaint" doctrine and recognizing its equating "promptness with veracity" and how the law retains the view that "silence after the rape...impeaches the credibility of the complaintant").

¹⁷ See Estrich, supra note 12, at 1140 (explaining that traditional doctrines fail to account for the female victims who fear the receptiveness from those to whom she discloses the rape, given that the view that women are untrustworthy pervades the law); Susan Stefan, The Protection Racket: Rape Trauma Syndrome, Psychiatric Labeling, and Law, 88 NW. U. L. REV. 1271, 1333-34 (1994) (describing how women fear "the likelihood of disbelief by the police, retaliation by the rapist, hostility of family and support network, and the stress caused by the judicial proceedings and stigma of being a public rape 'victim"'); seealso CHARLES W. DEAN & MARY DEBRUYN-KOPS, THE CRIME AND CONSEQUENCES OF RAPE 63-66 (1982) (discussing the reasons behind women's refusal to report or prosecute crimes of rape).

¹⁸ The law on the matter has developed piecemeal. Sexual assault in war could have come under some of the following sanctions but lacked primary recognition in its own right. For gendered crime as torture, see Universal Declaration of Human Rights, art. 5, at 71, U.N. Doc. A/810 (1948); International Covenant on Civil and Political Rights, Dec. 19, 1966, art. 7, 999 U.N.T.S. 175, U.N.G.A. Res. 2200 (XXI), 21 U.N. GAOR, Supp. (No. 16) 49, U.N. Doc. A/6316 (1967), reprinted in 6 I.L.M. 360 (1967) [hereinafter ICCPR] ("No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."); Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment, U.N. GAOR, 39th Sess., Supp. No. 51, at 197, U.N. Doc. A/RES/46 (1984), reprinted in 23 I.L.M. 1027 (1984) (ensuring "that all acts of torture are offenses" and including "attempt [[s] to commit torture"). With respect to gendered crime as slavery, see Slavery Convention, Sept. 25, 1926, 60 L.N.T.S. 253. For the inclusion of torture as a form of a systematic violation against human rights, of which warfare rape could have been included, seethe Draft Code of Crimes Against the Peace and Security of Mankind, art. 21, in Report of the International Law Commission on the Work of its Forty-Third Session, U.N. GAOR, 46th Sess., Supp. No. 10, at 238, 247 U.N. Doc. A/46/10 (1991).

¹⁹ In this context, see, for example, Declaration on the Elimination of Violence against Women, U.N. GAOR, 48th Sess., Agenda Item 111, at 1, U.N. Doc. A/RES/48/104 (1994), defining "'violence against women' [as] any act of gender- based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty ..." and including rape with in this definition (emphasis added).

²⁰ See Theodor Meron, Rape as a Crime Under International Humanitarian Law, 87 AM. J. INT'L L. 424 (1993) (arguing that rape in war has been prohibited internationally for centuries). See generally Oren Gross, The Grave Breaches System and the Armed Conflict in the Former Yugoslavia, 16 MICH. J. INT'L. L. 783 (1995) (recognizing rape as a grave breach and advocating that its status as a crime against humanity lead to its enforcement as such); Arden B. Levy, International Prosecution of Rape in Warfare: Nondiscriminatory Recognition and Enforcement, 4 UCLA WOMEN'S L.J. 255 (1994) (stating that rape in times of war has been inconsequential and that treaties have not adequately addressed or emphasized its punishment); Dorothy Q. Thomas & Reagan E. Ralph, Rape in War: Challenging the Tradition of Impunity, 1994 SAIS REV. 81; Yolanda S. Wu, Genocidal Rape in Bosnia: Redress in United States Courts Under the Alien Tort Claims Acts, 4 UCLA WOMEN'S L.J. 101 (1993) (arguing that soldiers have not been held accountable for their acts of rape). See also infra note 26.

²¹ Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, art. 27, para. 2, 6 U.S.T. 3516, 75 U.N.T.S. 287 [[hereinafter Fourth Geneva Convention] ("Women shall be especially protected against any attack on their honour, in particular against rape.").

²² See Protocol Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of International Armed Conflicts, U.N. Doc. A/32/144/Annex I (1977), reprinted in 16 I.L.M. 1391 (1977) [hereinafter Protocol I].

²³ See id. at art. 76(1) ("Women shall be the object of special respect and shall be protected in particular against rape."); Fourth Geneva Convention, supra note 21, at 306 (setting forth protections for civilians in times of war).

²⁴ See generally Kathleen M. Pratt & Laurel E. Fletcher, Time for Justice: The Case for International Prosecutions of Rape and Gender-Based Violence in the Former Yugoslavia, 9 BERKELEY WOMEN'S L.J. 77 (1994) (positing that gender-based violence, including rape, has been historically overlooked and remains unrecognized and unaddressed); Danise Aydelott, Comment, Mass Rape During War: Prosecuting Bosnian Rapists Under International Law, 7 EMORY INT'L. L. REV. 585 (1993) (indicating that rape in war has been condoned, despite treaties that attempt to protect women); see also Laurel Fletcher et al., Human Rights Violations Against Women, 15 WHITTIER L. REV. 319 (1994) (advocating that although in the past rape in war went unpunished, in the situation in the former Yugoslavia the violations cannot be excused).

²⁵ Grave breaches are listed in common Articles 50, 51, 130, 147 of the Geneva Conventions respectively. See THE GENEVA CONVENTIONS OF AUGUST 12, 1949, 43, 69, 131, 211 (Int'l Comm. of the Red Cross ed., 1949, 1952-58); seealso infra notes 26-28 and accompanying text (discussing the Geneva Conventions).

²⁶ The four Conventions are: Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31 [hereinafter First Geneva Convention]; Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85 [hereinafter Second Geneva Convention]; Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter Third Geneva Convention]; Fourth Geneva Convention, supra note 21.

²⁷ Meron, supra note 20, at 425 (citing the Convention Respecting the Laws and Customs of War on Land, with Annex of Regulations, Oct. 18, 1907, 36 Stat. 2277, 1 Bevans 631 [Hague Convention No. IV]).

²⁸ See Gross, supra note 20, at 820 (positing that the list of grave breaches is not exclusive and that "the range of recognized war crimes extends beyond that which is covered by 'grave breaches"').

²⁹ See Jordan J. Paust, Correspondence, 88 AM. J. INT'L L. 88, 88 (1994) (stating that the systematic use of rape as a form of warfare is self- evident and is included in Article II of the Convention).

³⁰ See Geneva Conventions, supra note 26; Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed on the Territory of the Former Yugoslavia Since 1991, art. 2, at 36, U.N. Doc. S/25704 (1993) Annex. and S/25704/Add.1 (1993), adopted by U.N. SCOR, U.N. Doc. S/RES/827 (1993) [[hereinafter Statute of the International Tribunal], reprinted in 32 I.L.M. 1192 (1993).

³¹ See Statute of the International Tribunal, supra note 30, at art. 2. Article 2(b) states:

(2) The International Tribunal shall have the power to prosecute persons committing or ordering to be committed grave breaches of the Geneva Conventions of 12 August 1949, namely the following acts against persons or property protected under the provisions of the relevant Geneva Conventions: ...

(b) torture or inhuman treatment, including biological experiments ....

Id.

³² Gross, supra note 20, at 829 & n.163 (citing "Cyprus v. Turkey, 4 EUR. H.R. REP. 482, 537 (1982) (recognizing acts of rape by Turkish soldiers in Cyprus to be" inhuman treatment,"although not recognizing them as torture)").

³³ See Meron, supra note 20, at 426 (characterizing the act of rape as "torture or inhuman treatment" in certain circumstances). It also seems that the Commission of Experts, established pursuant to Security Council Resolution 780, subscribes to the view that rape constitutes torture. See, e.g., Final Report of the Commission of Experts Established Pursuant to Security Council 780, para. 135, U.N. Doc. S/1994/674 (1994) (discussing "indiscriminate killings, rape and sexual assaults, and other forms of torture committed against civilians and prisoners of war").

³⁴ Statute of the International Tribunal, supra note 30, at art. 2(c).

³⁵ See id. at art. 4.

³⁶ See id.

³⁷ Catharine MacKinnon has been trenchant in her position that rape in this war and others constitutes a deliberate and systematic form of genocide. She states: "Yet the world has never seen sex used this consciously, this cynically, this elaborately, this openly, this systematically, with this degree of technological and psychological sophistication, as a means of destroying a whole people." Catharine A. MacKinnon, Turning Rape into Pornography: Postmodern Genocide, in MASS RAPE, supra note 11, at 73, 75.

³⁸ Statute of the International Tribunal, supra note 30, at art. 4(2)(b).

³⁹ See id. at art. 4(2)(d).

⁴⁰ See id. at art. 5(g).

⁴¹ Gross, supra note 20, at 820-21. "In the proceedings before the Tokyo Tribunal, evidence of rape and 'violence against women' was considered as one of the factors to support convictions of war criminals." Id. (citing 20 R. JOHN PRITCHARD & SONIA M. ZAIDE, THE TOKYO WAR CRIMES TRIALS (1987) (judgment)).

⁴² See Council Control Law No 10, reprinted in 1 TRIALS OF THE WAR CRIMINALS BEFORE THE NUREMBERG TRIBUNAL at xvi, xvii (1950).

⁴³ Catharine MacKinnon discusses the legal definition of rape as follows:

The crime of rape--this is a legal and observed, not a subjective, individual, or feminist definition--is defined around penetration. That seems to me a very male point of view on what it means to be sexually violated. And it is exactly what heterosexuality as a social institution is fixated around, the penetration of the penis into the vagina. Rape is defined according to what men think violates women, and that is the same as what they think of as the sine qua non of sex.

CATHARINE A. MACKINNON, FEMINISM UNMODIFIED: DISCOURSES ON LIFE AND LAW 87 (1987).

⁴⁴ The Rules of Evidence and Procedure find their basis in the Secretary-General's report that recommended the preparation and adoption of rules by the judicial bench as a whole. See Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808, at 21, U.N. Doc. S/25704 (1993) [hereinafter Resolution 808]. Under Resolution 827 the Security Council agreed that the judges should take into consideration any submissions by States. Submissions were received by Argentina, Australia, Canada, France, Norway, Sweden, and the United States. A number of non-governmental organizations also submitted suggestions including the American Bar Association, Helsinki Watch, Amnesty International, the Lawyers Committee for Human Rights and the International Women's Law Clinic.

⁴⁵ See Procedure and Evidence Rule 34(a), supra note 8; seealso infra notes 48-62 and accompany text (describing Rules 34, 69, and 75 which help to protect and support victims and witnesses).

⁴⁶ See Procedure and Evidence Rule 96, supra note 8.

⁴⁷ See id. R. 90-96.

⁴⁸ See id. R. 34.

⁴⁹ See SUSAN ESTRICH, REAL RAPE 10-11 (1987) (reporting that even the United States "Uniform Crime Reports acknowledge that rape is underreported"). The Canadian Law Society reports that, "it is believed that one in four women in Canada will be sexually assaulted some time during her life. Many sexual assaults are not reported. This is due, in part, to the victim's lack of confidence that the justice system will support them." THE LAW SOCIETY OF BRITISH COLUMBIA, GENDER EQUALITY IN THE JUSTICE SYSTEM 69 (1992).

⁵⁰ The Secretary-General's Report pre-dating the rules firmly endorsed the need to protect victims and witnesses of sexual crimes in particular. See Resolution 808, supra note 44, at 28.

⁵¹ Rule 34(b) states: "Due consideration shall be given, in the appointment of staff, to the employment of qualified women." Procedure and Evidence Rule 34(b), supra note 8.

⁵² See MORRIS & SCHARF, supra note 7, at 401.

⁵³ See Procedure and Evidence Rule 34(b), supra note 8.

⁵⁴ See id. at R. 69.

⁵⁵ See AMNESTY INTERNATIONAL, WOMEN IN THE FRONTLINE (1990).

⁵⁶ See id.

⁵⁷ The Report of the UN Special Rapporteur on the Former Yugoslavia to the 49th Session of the UN Commission on Human Rights has recorded that

[f]ear of reprisals against themselves and their families, some of whom may still be in the areas affected by the conflict, also makes victims unwilling to speak.... Some of the women met by the team of experts felt exploited by the media and the many missions "studying" rape in the former Yugoslavia. Furthermore, health care providers were concerned about the effects on women of repeatedly recounting their experiences without adequate psychological and social support systems in place.

Report on the Situation of Human Rights in the Territory of the Former Yugoslavia Submitted by Mr. Tadeusz Mazowiechi, Special Rapporteur of the Commission on Human Rights Pursuant to Commission Resolution 1992/S1/1 of 14 August 1992, U.N. ESCOR, 49th Sess., Annex II, at 72, paras. 51-52, U.N. Doc. E/CN.4/1993/50 (1993).

⁵⁸ See Procedure and Evidence Rule 75, supra note 8.

⁵⁹ See generally Paola Gaeta, The Dayton Agreements and International Law, 7 EJIL 147 (1996) (reflecting the unique legal features of the Dayton Agreement, while also traversing in detail the contents of the Agreement and additional annexes); see also Bosnia and Herzegovina-Croatia-Yugoslavia: General Framework Agreement for Peace in Bosnia and Herzegovina with Annexes, 35 I.L.M. 75 (1996) [hereinafter Dayton Agreement] (containing a copy of the original agreement and annexes).

⁶⁰ Repatriation and reintegration were ostensible cornerstones of the Dayton Agreement--guaranteed by the Constitution of Bosnia and Herzegovina. See Dayton Agreement, supra note 59, at 79 & Annex 4; see also id. at 79-80 & Annex 7 ("Agreement on Refugees and Displaced Persons which provides for the implementation of the very cursory constitutional provisions on the reversal of ethnic cleansing, mainly by the establishment of an independent 'Commission for Displaced Persons and Refugees."'). See James A. Goldston, Crime Still Pays in Bosnia, WALL ST. J., Nov. 26, 1996, at A20 (discussing crime in Bosnia and the need to abandon the "'monitor/don't touch"' approach for a "'seek and detain"' policy toward criminals); Anthony Lewis, Anybody Want to Make Peace Work in Bosnia?, INT'L HERALD TRIB., Nov. 19, 1996.

⁶¹ G.A. Res. 40/34, U.N. GAOR, 40th Sess., Supp. No. 53, at 213, U.N. Doc. A/40/53 (1986); seealso 3 TRANSITIONAL JUSTICE: LAWS, RULINGS AND REPORTS 645 (Neil J. Kritz ed., 1995) (citing the U.N. Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power).

⁶² See U.N. Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, supra note 61, at para. 6(d).

⁶³ Procedure and Evidence Rule 71(a), supra note 8. Rule 71(a) states: "At the request of either party, a Trial chamber may, in exceptional circumstances and in the interests of justice, order that a deposition be taken for use at trial, and appoint, for that purpose, a Presiding Officer." Id.

⁶⁴ See id. R. 89(a).

⁶⁵ See id. R. 75(c).

⁶⁶ See supra notes 11-17 and accompanying text (discussing rape and sexual assault trials).

⁶⁷ See Procedure and Evidence Rule 75(c), supra note 8; CASSIA SPOHN & JULIE HORNEY, RAPE LAW REFORM: A GRASSROOTS REVOLUTION AND ITS IMPACT 17-32 (1992) ("'In a rape case it is the victim, not the defendant, who is on trial."').

⁶⁸ See Procedure and Evidence Rule 89(c), supra note 8.

⁶⁹ See id. For a detailed discussion on the terms "relevant evidence" and "probative value," see Daniel D. Ntanda Nsereko, Rules of Procedure and Evidence of the International Tribunal for the Former Yugoslavia, 5 CRIM. L.F. 507, 541-42 (1994).

⁷⁰ See Procedure and Evidence Rule 89(c), supra note 8. One interpretation of this Rule would also exclude evidence which threatens witnesses with physical or psychological harm. Thus, "fair trial" under a wide interpretation, could mean that the fairness element also goes to the harms which may be visited upon witnesses or victims as a result of the presentation of certain evidence. It remains to be seen whether judges would exclude evidence that is so tainted by sexual stereotypes that it is of no evidentiary value using this Rule.

⁷¹ See Procedure and Evidence Rule 93, supra note 8.

⁷² See id.

⁷³ See Resolution 808, supra note 44, at 48. The context of the Secretary-General's discussion is in relation to the definition of crimes against humanity, but the specific matter of systematic abuse is cogently articulated. See id.

⁷⁴ Rupa Bhattacharyya, Establishing a Rule-of-Law International Criminal Justice System, 31 TEX. INT'L L.J. 57, 64 (1996) (translating the Latin phrase as "there can be neither crime nor punishment unless there is a law that so declares"); Cynthia Kwei Yung Lee, Prosecutorial Discretion, Substantial Assistance, and the Federal Sentencing Guidelines, 42 UCLA L. REV. 105, 119 (1994) (translating the Latin phrase as "no crime without law, no punishment without law").

⁷⁵ See Procedure and Evidence Rule 93(a), supra note 8 ("Evidence of a consistent pattern of conduct may be admissible in the interests of justice.").

⁷⁶ See Ruth Seifert, War and Rape: A Preliminary Analysis, in MASS RAPE, supra note 11, at 54, 54-72. Ruth Seifert has outlined a five part thesis that explains the function and communicative purpose of rape in war. First, that rapes are part of the rules of war, evidenced by an historical lineage that shows sexual violation to be a common feature of conquering and asserting military dominance. See id. at 58. Second, that in belligerent disputes the abuse of women is an element of male communication, proclaiming humiliation and superiority over the vanquished. See id. at 59. Third, that rapes also result from the elevation of masculinity that accompanies war in many cultures. See id. at 59-62. Fourth, that rape in war is aimed at destroying the opponent's culture. See id. at 62-64. Women as the vessel of childbearing are the symbolic representation of the body politic. See id. at 65-66. Their defilement is an expression to the community as a whole. See id. Finally, that the background to rape originates in a culturally rooted contempt for women that is elevated in times of crisis. See id. at 66.

⁷⁷ See Procedure and Evidence Rule 101, supra note 8.

⁷⁸ See id. R. 101(b)(i).

⁷⁹ See Alexandra Stiglmayer, The Rapes in Bosnia-Herzegovina, in MASS RAPE, supra note 11, at 82, 82-169. Stiglmayer recounts the stories of women raped during the war:

"Almost every woman who was still there after the 'ethnic cleansing' began was raped," claims twenty-seven-year-old Razija from the village of Turkovo, "even seventy-year-old women." They came into our houses as if they owned them, forced us to make them coffee and wash them, and satisfied their needs on us.

Id. at 98.

'[the rape camps]...There wasn't any light; it was dark. We hardly knew when it was daytime or nighttime. And then they'd come and pick out women, take them away to classrooms so they could rape them. They looked for the women with little lights, flashlights.

Id. at 117.

⁸⁰ "My daughter was raped along with me. First he raped me, and then I had to watch while he raped my little girl." Id. at 119.

⁸¹ See id. at 116-31.

⁸² See id. at 131, 135.

⁸³ See Procedure and Evidence Rule 96, supra note 8.

⁸⁴ See id. The Rule states:

In cases of sexual assault:

(i) no corrobation of the victim's testimony shall be required;

(ii) consent shall not be allowed as a defence if the victim

(a) has been subjected to or threatened with or has had reason to fear violence, duress, detention or psychological oppression; or

(b) reasonably believed that if [she] the victim did not submit, another might be so subjected, threatened or put in fear;

(iii) before evidence of the victim's consent is admitted, the accused shall satisfy the Trial Chamber in camera that the evidence is relevant and credible;

(iv) prior sexual conduct of the victim shall not be admitted in evidence.

Id.

⁸⁵ See id. R. 96(i). See generally C.P.M. Cleiren & M.E.M. Tijssen, Rape and Other Forms of Sexual Assault in the Armed Conflict in the Former Yugoslavia: Legal, Procedural, and Evidentiary Issues, 5 CRIM. L.F. 471, 505 (1994). As pointed out by Cleiren and Tijssen the non-corroboration requirement may have eased the burden of the Prosecutor significantly. When evidence of international humanitarian law violations was being initially gathered by the Commission of Experts, and thereafter by the Tribunal's own investigators, rules of evidence and procedure were not formalized. Given the variety among domestic legal systems in the proof of rape cases, it may have been difficult to decide which evidence to collect. Evidence collection would also have been complicated by an ongoing armed conflict, and the deaths, disappearance, and displacement of populations. The non-corroboration requirement has potentially made the task of proof much easier for the prosecution. See id.

⁸⁶ See ESTRICH, supra note 49, at 42-43. Susan Estrich points out that while the formal requirement has been abandoned by American jurisdictions, in practice it remains a critical factor in determining the disposition of rape charges to the present day. See id. The corroborative requirement has also been championed by the English courts. Cautions to the jury frequently went along the following lines: "[I]t is not safe to convict upon the uncorroborated testimony of the prosecutrix, but that the jury, if they are satisfied of the truth of her evidence, may, after paying attention to that warning, nevertheless convict." R. v. Jones, 19 Crim. App. 40, 41 (Eng. Crim. App. 1925).

⁸⁷ See ESTRICH, supra note 49, at 47.

⁸⁸ See id. at 42-43.

⁸⁹ See id. at 43 (noting that this premise provided the "justification for the formal rule").

⁹⁰ See supra notes 83-85 and accompanying text (setting forth the Tribunal's rule on sexual assaults).

⁹¹ See Universal Declaration of Human Rights, supra note 18, at arts. 1, 2 (stating that all humans are born "equal in dignity and rights" and that no distinctions are made between the sexes); ICCPR, supra note 18, at arts. 2, 3 (stating that the rights recognized in the Covenant apply to all individuals without distinction); Declaration on the Elimination of Discrimination Against Women, G.A. Res 2263, U.N. GAOR, 22d Sess., Supp. No. 16, at 35, U.N. Doc A/6716 (1967); Convention on the Elimination of All Forms of Discrimination Against Women, G.A. Res 34/180, U.N. GAOR, 34th Sess., Supp. No. 46, at 194, U.N. Doc. A/34/830 (1979), reprinted in 19 I.L.M. 33 (1980) [hereinafter CEDAW].

⁹² This is because the formal definitions of crime used to determine punishment are politically determined by those in authority, who may not find all actions within the definitions. See Kenneth B. Nunn, The Trial as Text: Allegory, Myth, and Symbol in the Adversarial Criminal Process A Critique of the Role of the Public Defender and a Proposal for Reform, 32 AM. CRIM. L. REV. 743, 764-67 (1995).

⁹³ The United Nations General Assembly is actively negotiating a Convention to create a permanent International Criminal Court (ICC). In August 1997, the Rules governing investigations and prosecutions of sex-specific crimes are to be debated by the preparatory Committee. It will be particularly interesting to see how far the specialized Rules relating to the prosecution and trial of sex-specific crimes in war by the Yugoslav Tribunal will affect the permanent structure which will address these issues.

⁹⁴ See Procedure and Evidence Rule 96(iv), supra note 8; see also supra note 84 (containing the text of Rule 96 which refuses to admit into evidence the prior sexual conduct of the victim).

⁹⁵ See, e.g., FED. R. EVID. 412(b) (listing the Rape Shield provisions regarding a woman's sexual past).

⁹⁶ That point was succinctly made in the case of Lee v. State, 179 S.W. 145, 145 (Tenn. 1915), where the presiding judge stated: "no impartial mind can resist the conclusion that a female who has been in the recent habit of illicit intercourse with others will not be so likely to resist as one spotless and pure." Id.

⁹⁷ ESTRICH, supra note 49, at 48.

⁹⁸ See AMNESTY INTERNATIONAL, BOSNIA-HERZEGOVINA: RAPE AND SEXUAL ABUSE BY ARMED FORCES 7-8 (1993) (detailing cases of rape by perpetrators who were known to the victims).

⁹⁹ See Procedure and Evidence Rule 96(iv), supra note 8 (denying the admittance of the prior sexual conduct of the victim); see also supra note 84 (containing the text of Rule 96(iv)).

¹⁰⁰ See id. R. 96(ii).

¹⁰¹ See ESTRICH, supra note 49, at 49 (giving example of a defendant who having had a past relationship with his victim, assumed her passivity to be consent).

¹⁰² Procedure and Evidence Rule 96(ii), supra note 8; seealso supra note 84 (containing the text of Rule 96(ii)).

¹⁰³ See Procedure and Evidence Rule 96(ii), supra note 8.

¹⁰⁴ See id. R. 96(iii); see also supra note 84 (containing the text of rule 96(iii)).

¹⁰⁵ See Procedure and Evidence Rule 96(iii), supra note 8.

¹⁰⁶ The lack of significance attributed to sexual violence, and in particular rape in war, is illustrated by the fact that the Restatement largely ignores the issue. See RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW (1986).

¹⁰⁷ In particular, it is worth noting that the domestic law of the now defunct Socialist Federal Republic of Yugoslavia (SFRY) was distinctly deficient in relation to gender specific violence. See Proposal of the National Alliance of Women's Organizations, in MORRIS & SCHARF, supra note 7, at 401-02. However, under the substantive provisions on war crimes entitled "Crimes Against Humanity and International Law," which is still being applied by the relevant successor states of the former Yugoslavia, gendered violence is not excluded from prohibition; under Articles 142 and 120 of the criminal code of the SFRY, the acts of enforced prostitution and rape are forbidden. See LAWYERS COMMITTEE FOR HUMAN RIGHTS, PROSECUTING WAR CRIMES IN THE FORMER YUGOSLAVIA 28 (1995).

¹⁰⁸ See generally RICHARD FALK, THE ROLE OF DOMESTIC COURTS IN THE INTERNATIONAL LEGAL ORDER 12 (1964) ("[D]omestic courts...should be ready to apply substantive standards of international law when an effective consensus of states favors the implementation of the rule.")

¹⁰⁹ See supra notes 91, 93 and accompanying text (discussing the human rights instruments and General Assembly Resolutions which outline the formal international standards).

End of Document

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