2013 graduate Shayna Rogers’s article “Sexual Violence or Rape as a Constituent Act of Genocide: Lessons from the Ad Hoc Tribunals and a Prescription for the International Criminal Court” has been accepted for publication in an upcoming volume of the George Washington International Law Review. The article argues for more appropriate treatment of sexual and gender-based violence in mass atrocity situations. In particular, the paper argues that the Rome Statute, the treaty that governs the International Criminal Court, should be amended to specifically enumerate sexual violence as a constituent act of genocide.
The article began as Rogers’s Capstone paper when Rogers was a student in Professor Kathleen Maloney’s International Criminal Law course in the spring of 2012. Capstone completed, Professor Maloney encouraged Rogers to pursue publication and continued to work with Rogers over a three year period, in part because Professor Maloney believed in the paper’s potential to contribute to the field of International Law. The article was accepted for publication in spring of 2015. Rogers said that it was Professor Maloney’s unyielding support and mentorship that made the article possible.
Rogers is currently clerking for Judge Erin Lagesen on the Oregon Court of Appeals and will join the Salem firm Garrett Hemann Robertson’s business practice group when her clerkship ends in August. During her time as a clerk, Rogers has had the opportunity to work on all types of cases—civil, criminal, and administrative. When she moves to Garrett Hemann Robertson, her practice will focus on business transaction and litigation.
Detailed Summary of Rogers’s Article:
Despite the International Criminal Court (ICC)’s recognition of sexual crimes in over sixty percent of cases, the tribunal has long been criticized for its ineffective prosecution of wartime rape. Moreover, where sexual crimes have, in fact, been prosecuted, they have historically been charged as crimes against humanity or war crimes—never as genocide, even where the acts targeted a national, ethnic, racial, or religious group. It was not until 2010 that the ICC issued its first indictment for sexual violence committed in furtherance of the crime of genocide, when it charged Sudanese President Omar al-Bashir with three counts of genocide, expressly noting rape as a component of his “genocidal policy.”
Although the ICC has no experience prosecuting sexual violence as genocide under the Rome Statute, such prosecutions are not without precedent: the jurisprudence of the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for Yugoslavia (ICTY) offer guidance. The article evaluates the jurisprudence of the ICTR and ICTY, and uses that case law to formulate a prescription for future prosecutions at the ICC. It concludes that an amendment to the Rome Statute, specifically enumerating sexual violence as a constituent act of genocide, offers the best means of ensuring continued prosecution of genocidal sexual violence under international law.
