1
Gender Justice or Just Gender?
Sexual Assault Decisions at the International Criminal Tribunal for the Former Yugoslavia
Since the beginning of time, sexual violence has been a constant in armed conflict as a method of
control, humiliation, and torture because of the tactical advantage it provides—it simultaneously
demoralizes an enemy and provides the “spoils of war” to the troops (MacKinnon 1994; Brownmiller
1975). While the first attempt to outlaw rape during armed conflict emerged in the mid-1800s,
governments and international entities have long recognized that sexual assault deserved punishment. As
international humanitarian law developed in the Twentieth Century, sexual assault was accepted as a
category of criminal activity, but the prosecution of such crimes was non-existent (Coan 2000).
1
The establishment of the International Criminal Tribunal for the former Yugoslavia (ICTY) and
its sister tribunal in Rwanda (ICTR) marked the intersection of two important developments in
international humanitarian law related to gender justice. First, the statutes of both tribunals allowed the
prosecution to charge defendants with rape as a crime against humanity, as a war crime, and even as
genocide (Sellers 2002).
2
Second and as never before, women were appointed to both Tribunals in
relatively large numbers. While others have debated whether the tribunals have advanced the cause of
women, no one has analyzed whether gender justice has been served at the tribunals through quantitative
analysis. Through research on the sentences handed down in sexual assault cases and the role of women
(as jurists), we gain a better understanding of gender differences in judicial decision-making and evaluate
whether justice for victims of assault has been meted out by international tribunals.
3
Are the war crimes’ judges more willing to give lengthier sentences when the charges include
allegations of sexual violence? Has the presence of women judges produced tangible differences in
1
Despite the tribunals formed at Nuremberg and Tokyo, it was not until the ICTY and ICTR that commanders, as
well as field soldiers were held accountable for sexual violence. The Nuremberg prosecutors did not charge officials
with rape. Even those convicted under the Tokyo trials were found guilty only of command and control over their
troops that had carried out the rapes.
2
In the Akayesu case, the ICTR found for the first time in history that acts of rape can be considered forms of
genocide. The Prosecutor v. Jean-Paul Akayesu; Case No. ICTR-96-4-T (Trial Chambers, Sept. 2, 1998), available
at
www.ictr.org/
(.(last visited January 20, 2005).
3
There are qualitative analyses of sexual assault cases (see Askin 1999) and evaluations of the problems in
resolving such cases (see Niarchos 1995 and MacKinnon 1994).
Convention