Consent to Genocide: The ICTY's Improper Use of the Consent Paradigm to Prosecute Genocidal Rape in Foca
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Consent to Genocide?: The ICTY's
Improper Use of the Consent
Paradigm to Prosecute Genocidal
Rape in Foca
Adrienne Kalosieh*
There is one area of social behavior
where sexism is entrenched in the law
- one realm where traditional male
prerogatives are most protected, male
power most jealously preserved, and
female power most jealously limited -
it is in the area of sex itself, even
forced sex.'
I. INTRODUCTION
In February 2001, the International Crimi-
nal Tribunal for the Former Yugoslavia (ICTY)
convicted three Serb soldiers of rape as a war
crime against Bosnian civilians in Prosecutor v.
Kunarac, Kovac, & Vukovic2 (a.k.a. Foca,
named after the town in which the criminal
events took place3). The case marked the first
conviction based exclusively on sexual assault
to be heard by an international judiciary. In
reaching its decision, the Trial Chamber opted
not to follow the definition of the elements of
rape that had previously been used by the
ICTY as well as the International Criminal Tri-
bunal for Rwanda (ICTR). Instead, in defining
the elements of rape, the Foca Trial Chamber
included a consent paradigm, permitting de-
fendants to use consent to sex as a defense,
which had been considered and excluded from
previous Chambers. While the ICTY's defini-
tion of consent laudably incorporates the notion
of sexual autonomy, and is a liberal standard
relative to consent requirements globally, the
consent paradigm is inappropriate in conflict
situations where rape is used as a weapon of
war.
In this note, I will examine the inclusion of
the element of consent in the definition of rape
as a war crime used by the Foca Chamber in
light of the precedents of the ICTY and ICTR.
I argue that the inclusion of the element of con-
sent is inappropriate and unnecessary to the
prosecution of wartime rape. First, the ICTY
may and has interpreted the language of its ena-
bling statute to allow the coercion inherent in
*J.D. Candidate, Rutgers University School of Law-
Newark, May 2003; B.A. Georgetown University. I would
like to thank Professor Radhika Coomaraswamy for alerting
me to this issue and inspiring this article.
1. Susan Estrich, Sex at Work, 43 STAN. L. REV. 813, 814-
15 (1991).
2. Case No. IT-96-23, Applicable Law, para. 437 (Feb. 22,
2001), available at http://www.un.org/icty/trialc2/judgement/
kuntj0l022e-4.htm (last visited March 2, 2002) [hereinafter
Foca Judgment].
3. The town no longer officially exists. The Serbs renamed
it Srbinje in 1992 after expelling virtually all Muslims and de-
molishing the town's fourteen mosques. Joanna Barkan, As
Old as War Itself: Rape in Foca, DISSENT, Winter 2002, at 60,
66.
[Women's Rights Law Reporter, Volume 24, Number 2, Spring 2003]
© 2003 by Women's Rights Law Reporter, Rutgers-The State University
0085-8269/80/0908](ViewImageLocal?handle=hein.journals/worts24&div=15&collection=&method=preview&ext=.png&size=3)
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Consent to Genocide: The ICTY's Improper Use of the Consent Paradigm to Prosecute Genocidal Rape in Foca
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