A Violent Intersection: Jurisprudential Issues Raised by International Law Recognition of Rape as Genocide

Abstract

When the International Criminal Tribunal for Rwanda (ICTR) recognised rage as genocide, in Prosecutor v. Jean-Paul Akayesu, the tribunal made a claim with both important jurisprudential consequences and wide-reaching implications for the development of law and policy. This paper shall explore these effects by dissecting three claims commonly made in the literature. First, that genocide is a crime against groups; second, that it is not appropriate to evaluate the consent of victims in the context of genocidal rape, and finally, that genocidal rape is a gendered crime. It is the aim of this paper to examine these claims in detail, providing an analytical basis for either affirming or rejecting them. In doing so, it will draw on principles of moral philosophy to inform its discussion of the law. More specifically, focus will be given to the philosophy of human rights, ethics and justice, and how they impact international criminal law, both descriptively and normatively. The dominant perspective of this paper will be classical liberalism, applying the theories of Kant, Nozick, Feinberg and Dworkin to explain the underlying morality of criminal law, a morality based, it is argued, on autonomy.