Rape as genocide: some questions arising

Owing to the leading jurisprudence of the International Criminal Tribunal for Rwanda, it is now generally accepted that rape can be an act of genocide. In the application of this interstitial principle of international criminal law, certain distracting tendencies must be kept in view. One such distracting tendency is the divergent judicial definition and analysis of rape itself as a concept. Should such definition and analysis focus upon the conduct of the rape victim, by requiring the prosecutor routinely to establish absence of consent on the part of the victim of rape, as a necessary part of the case for the prosecution? Or is it enough that a general proof of genocide must presume lack of consent on the part of the victim? It is submitted that the very context of genocide makes it unnecessary for the prosecutor to prove that the victim did not consent to the sexual act charged as rape. To require otherwise as a matter of routine is routinely to make the victim's conduct the subject of inquiry in the trial. Another distracting tendency of which one must beware in the jurisprudence of rape as an act of genocide is the controversy regarding whether the crime of genocide requires proof that a substantial part of the victim group must be intended for destruction. There are difficulties with the theory of "substantial part." It is submitted, however, that whatever the merits of this controversy, it must not perturb the conception of rape as an act of genocide. This is because the object of the controversy relates to the intent of the genocidaires and not to the method, such as rape, employed to execute the genocidal enterprise. Hence, the rape of less than a substantial part of the victim group ought not perturb the conception of rape as an act of genocide, where the genocidaires are shown to have intended the destruction of a substantial part of the victim group. Finally, the jurisprudence of rape as a crime of genocide is not fully realized in the face of failure to take full advantage of the theory of joint criminal enterprise. This failure has resulted in the rape acquittal of accused persons who ordered a plenary extermination of the victim group, yet escaped conviction for any resulting rape on grounds that his orders did not contemplate rapes committed by the assailants carrying out his orders to commit genocide by killing their victims.