Thursday, February 3, 2011

Should international courts prosecute sex crimes?

(Alumna Margaret deGuzman contributes this guest post, another in our series of posts on essays forthcoming in "Women and International Criminal Law," a special issue of the International Criminal Law Review)

As a participant in the IntlawGrrls-sponsored roundtable on “Women in International Criminal Law” last October, I presented my research on the philosophical justifications for giving priority to the prosecution of sex crimes at international criminal courts. My essay will appear in our special issue under the title "Why Should International Courts Prosecute Sex Crimes?"
International courts face serious resource constraints; they can generally prosecute only a small fraction of the serious crimes within their jurisdictions. Ever since the Nuremberg and Tokyo trials, where sex crimes were largely ignored or prosecuted under such euphemistic labels as “failure to respect family honor,” feminists have advocated for more resources to be allocated to the prosecution of sex crimes. (credit for 2009 photo of ICTY in session)
International prosecutors have heeded this call to some extent, placing greater emphasis on the investigation and prosecution of sex crimes. Selecting sex crimes for prosecution, however, often requires leaving other serious crimes unpunished, including crimes that resulted in death.
Some have questioned the appropriateness of such selection decisions. For example, in a 2002 article (pp. 310-11) a former trial attorney at the International Criminal Tribunal for the former Yugoslavia, Peggy Kuo (right), reported that in the early days of the ICTY investigators made comments like:

'I’ve got ten dead bodies, how do I have time for rape?'
Moreover, empirical evidence from various national fora indicates that many people consider sex crimes less serious than crimes resulting in death.
My symposium contribution represents an initial effort to provide philosophical justification for giving priority to sex crime prosecutions at international courts.
The essay examines each of the primary philosophical bases advanced for international prosecution to determine how they inform decisions whether to give priority to sex crime. These are:
► Retribution,
► Deterrence,
► Expressivism, and
► Restorative justice.
The essay finds that retribution and deterrence support such selections at least some of the time, and that expressivism and restorative justice provide an even stronger foundation for giving priority to sex crimes.
► While notions of retributive desert are complex, an argument can be made that at least some perpetrators of sex crimes are more deserving of punishment than some perpetrators of crimes resulting in death. In particular, killing crimes are sometimes unintentional, while sex crimes generally involve purposeful conduct.
► Prosecution of sex crimes may also provide greater deterrent benefits at least under some circumstances, such as when conviction for such crimes carries a greater stigma than conviction for illegal killings.
► Most importantly, there is a significantly greater need for the international community to express condemnation of sex crimes than of killing crimes, which are already considered serious violations of moral norms throughout the world.
► Finally, restorative justice goals may be more achievable in the context of sex crimes than crimes involving killing, because the immediate victims remain alive and thus potentially able to participate in and benefit from restorative processes.
I will be further developing the ideas sketched in this essay in the context of "Thematic Investigation and Prosecution of International Sex Crimes," a conference in which IntLawGrrl Valerie Oosterveld also will take part. Cosponsored by Yale University and the Belgium-based Forum for International Criminal and Humanitarian Law, the conference will be held in Cape Town, South Africa, on March 7-8, 2011. A publication will follow.

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