This Note argues that despite theoretical criticisms, the prosecution of rape and sexual enslavement as crimes against humanity, by the International Criminal Tribunal for the former Yugoslavia (ICTY) fits within a larger, emerging picture of international legal jurisprudence. First, the ICTY built upon both its own prior decisions and the decisions of the International Criminal Tribunal for Rwanda (ICTR), especially Prosecutor v. Akayesu, in order to close gaps in the international legal conceptualizations of rape and enslavement, torture, war crimes, genocide and crimes against humanity. Second, building upon the example set by the ICTR, the ICTY broadened international protections of civilians of either gender, especially civilians of different ethnicities, from even unsystematic acts of depravity. Third, it fully codified women as legally equal to men in the human community, but it did not unfairly single women out as a weaker gender in need of special protections, nor did it establish a victimology for women in rape cases. In other words, it brought women within the purview of humanity for purposes of prosecuting crimes against humanity. Finally, it established an historic foundation for the prosecution of crimes against humanity by other courts and in other locations, but did not infringe upon the sovereignty of either a state or an individual.
James R. McHenry, III,
The Prosecution of Rape Under International Law: Justice That Is Long Overdue,
35 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vjtl/vol35/iss4/5