Sexual Violence or Rape as a Constituent Act of Genocide: Lessons from the Ad Hoc Tribunals and a Prescription for the International Criminal Court
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SEXUAL VIOLENCE OR RAPE AS A CONSTITUENT ACT OF
GENOCIDE: LESSONS FROM THE AD HOC TRIBUNALS
AND A PRESCRIPTION FOR THE INTERNATIONAL
CRIMINAL COURT
SHAYNA ROGERS*
In 2010, the International Criminal Court (ICC) issued its first war-
rant of arrest for sexual violence committed in furtherance of the crime of
genocide. Although the ICC has no experience prosecuting sexual vio-
lence as genocide under the Rome Statute, such prosecutions are not
without precedent: the jurisprudence of the International Criminal Tri-
bunal for Rwanda (ICTR) and the International Criminal Tribunal for
Yugoslavia (ICTY) offer guidance. This Article evaluates the jurispru-
dence of the ICTR and ICTY, and uses that case law to formulate a
prescription for future prosecutions at the ICC. This Article concludes
that an amendment to the Rome Statute, specifically enumerating sexual
violence as a constituent act of genocide, offers the best means of ensur-
ing continued prosecution of genocidal sexual violence under interna-
tional law.
INTRODUCTION
The Rome Statute, the treaty that governs the International
Criminal Court (ICC), is in dire need of amendment. To date,
twenty-three cases have come before the ICC, thirteen of which
* Shayna Rogers is a member of the Oregon State Bar and an associate attorney
with Garrett Hemann Robertson P.C. Ms. Rogers received herJ.D. from Lewis & Clark Law
School, graduating magna cum laude, and her B.A. summa cum laude from the Oregon State
University Honors College. Ms. Rogers would like to extend her deepest gratitude to her
former professor, Kathleen Maloney, a mentor and friend whose constant support made
this Article possible.
1. Two cases from the situation in Uganda have come before the ICC. See Prosecutor
v. Kony, Case No. ICC-02/04-01/05, Warrant of Arrest (July 8, 2005) [hereinafter Kony
Warrant of Arrest]; Prosecutor v. Ongwen, Case No. ICC-02/04-01/15, Warrant of Arrest
(July 8, 2005). Six cases from the situation in the Democratic Republic of the Congo have
come before the ICC. See Prosecutor v. Lubanga, Case No. ICC-01/04-01/06, Warrant of
Arrest (Feb. 10, 2006); Prosecutor v. Ntaganda, Case No. ICC-01/04-02/06, Second War-
rant of Arrest (July 13, 2012); Prosecutor v. Katanga, Case No. ICC-01/04-01/07, Warrant
of Arrest (July 2, 2007) [hereinafter Katanga Warrant of Arrest]; Prosecutor v. Ngudjolo,
Case No. ICC-01/04-02/12, Warrant of Arrest (July 6, 2007) [hereinafter Ngudjolo Warrant
of Arrest]; Prosecutor v. Mbarushimana, Case No. ICC-01/04-01/10, Warrant of Arrest
(Sept. 28, 2010) [hereinafter Mbarushimana Warrant of Arrest]; Prosecutor v.
Mudacumura, Case No. ICC-01/04-01/12, Warrant of Arrest (July 13, 2012) [hereinafter
Mudacumura Warrant of Arrest]. Five cases from the situation in Darfur, Sudan have come
before the ICC. See Prosecutor v. Harun, Case No. ICC-02/05-01/07, Warrant of Arrest](ViewImageLocal?handle=hein.journals/gwilr48&div=13&collection=&method=preview&ext=.png&size=3)
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