Collective Criminality and Sexual Violence : Fixing a Failed Approach

Title: 
Collective Criminality and Sexual Violence : Fixing a Failed Approach
Journal Citation: 
33(1) LEIDEN JOURNAL OF INTERNATIONAL LAW, 207-241 (2020)

This article performs a gender-informed analysis of international criminal law’s theories on collective liability. Individual culpability is difficult to prosecute in cases of large-scale criminal activity, especially offences of sexual and gender-based violence (SGBV). The article explores the relative effects of various liability theories employed by ad hoc international criminal tribunals (ICTs), such as the ICTs for the former Yugoslavia and Rwanda, and the International Criminal Court (ICC). Particularly, the article examines the mode of liability known as joint criminal enterprise (JCE), employed in ad hoc international tribunals. The authors rebut current criticisms of the JCE doctrine and support the ‘contextually comparative’ method of applying JCE as a promising mode of prosecution. The authors critique the ICC’s distinct approach to individual culpability, as compared to the ad hoc tribunals’ JCE doctrine. The ICC invokes the theory of co-perpetration and common purpose liability. The authors assess the ways in which the ICC’s approach has been ineffective in prosecuting international crimes of SGBV. In conclusion, the authors emphasize that adoption of a contextual and gender informed approach in SGBV criminal prosecution will bolster international criminal law’s administration of justice.