Thursday, July 12, 2012

Thematic Prosecution of Sex Crimes

The Forum for International Criminal and Humanitarian Law has recently released two books on the international prosecution of sex crimes, entitled Thematic Prosecution of International Sex Crimes and Understanding and Proving International Sex Crimes.
The books, published by Torkel Opsahl Academic EPublisher and edited by Dr. Morten Bergsmo, Senior Researcher at the University of Oslo Faculty of Law, emerged from seminars , about which IntLawGrrl Beth Van Schaack previously posted, that brought together experts to discuss the legal, philosophical and practical issues involved in prosecuting international sex crimes in both international and national courts.
An important purpose of the books is to assist criminal justice personnel contemplating or pursuing sex crime prosecutions. Contributions to the volumes therefore examine existing legal standards and theoretical approaches but also suggest ways to improve upon current theory and practice.
My contribution to the volume on Thematic Prosecution, entitled "An Expressive Rationale for The Thematic Prosecution of Sex Crimes at International Criminal Courts", builds on an essay I wrote for a symposium on Women and International Criminal Law organized by Beth Van Schaack along with IntLawGrrls Diane Marie Amann and Jaya Ramji-Nogales. In this chapter, I examine the philosophical justifications for giving priority to sex crime prosecutions at international courts.
Despite the increased focus on sex crime prosecutions in recent years, no effort has been made, either at the tribunals or in the scholarship, to develop such justifications. Those who prosecute and write about sex crimes generally assume that international courts should focus particular attention on such crimes. Commentators sometimes point to the practical and institutional benefits of thematic sex crime prosecutions. Such prosecutions can, for example, increase an institution’s capacity to address sex crimes by developing relevant investigative and prosecutorial expertise and expanding the applicable law. But a prior normative question must be addressed:
Why should international courts give priority to sex crimes when allocating scarce resources?
I argue that the philosophical grounding for thematic sex crime prosecutions must be found in the underlying purposes of international criminal courts. While the moral justifications of international prosecutions are widely disputed, there are four primary contenders: retribution, deterrence, restoration, and expression.
In the first part of the chapter, I explain why none of the first three theories precludes giving priority to sex crime prosecutions. In fact, each theory supports such prosecutions, at least under some circumstances. I then explain that the strongest justification for giving priority to sex crimes is found in the expressive rationale for international criminal law. In other words, if international criminal law aims to express global norms it should often seek to promote the norms against sex crimes even at the expense of other important norms. The need for such special emphasis lies in the history of under-enforcement of sex crimes in both national and international fora as well as in the discriminatory expression inherent in the crimes themselves.

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