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Morten Bergsmo (ed.), Thematic Prosecution of International Sex Crimes, Beijing, Torkel Opsahl Academic EPublisher, 2012, 452pp., ISBN 9788293081319, £15.00.

Published online by Cambridge University Press:  31 July 2013

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Abstract

Type
BOOK REVIEWS
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2013 

How best to prosecute international sex crimes has been a crucially important, but also relatively niche, area of academic and policy discussion, and one that has largely focused upon the activities of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). Increasingly, the International Criminal Court (ICC) has been creating its own jurisprudential output on international sex crimes, which has not been engaged with to the same extent, largely because it is more recent. Additionally, the ICC's activities are conducted differently from those of the ICTR and ICTY because of the ICC's judicial oversight, in conjunction with the relatively limited resources available to deal with the number of (ongoing) conflict situations under its purview. (The ICTY and ICTR benefited from being able to concentrate all their resources and expertise upon a specific conflict.) It is a pitfall commonly seen for writers on this subject to leap from the ICTY and/or the ICTR to the ICC without taking proper heed of the significant differences between the two that are pertinent to the policy construction for, and difficulties in dealing with, prosecutions of international sex crimes. Also, other avenues for prosecution, such as national courts, are often neglected.

New and specific policy problems confront international law on sex crimes. The ICC's prosecutorial activities on sex crimes have mandated and legitimized the policy of thematic prosecution. Benefits and problems associated with thematic prosecutions are the basis of exploration for Thematic Prosecution of International Sex Crimes. This is the first anthology of its kind that directly and systematically engages with these new policy problems, providing itself with the objective of assisting those acting within the modern-day criminal-justice sphere to better bring about prosecutions. Importantly, the ICTR and ICTY are not dwelt upon, but rather deployed as examples where appropriate. Great effort is made to outline the distinctions between the two where they are not comparable, or where criticisms of the ICC based on the activities of the ICTY and ICTR may be considered unfair because of their differences. Therefore this work contributes significant amounts of new material and analysis to the study of international sex crimes because of its specific focus upon a range of more currently used prosecutory mechanisms, including international and national courts and ad hoc arrangements.

The clarity and precision of the analysis of this work, its deployment of examples, and its contextual grounding of comparatives makes it an invaluable handbook for academics, students, policy-makers, and practitioners in this area. Indeed, so thorough and accessible are its contents that it would not go amiss as a core text for students starting out in this area. Although not designed as a textbook, as Thematic Prosecutions of International Sex Crimes is not shrouded in overly legalistic language it permits itself to be a resource for everyone who is concerned about this issue. It is engaging and thoroughly comprehensive, meaning that the policy problems it confronts are uniquely easy to approach, and will leave the reader with an extensive understanding of the subject matter. Additionally, it has the benefit that individual chapters have the ability to be useful stand-alone pieces. Importantly, the relationship between practice and academia is cemented in this work when it comes to the prosecution of international sex crimes.

By drawing from an appropriately large variety of examples of international sex crime prosecutions, contributors provide not only clear and accessible analysis on policy problems, but also realistic policy suggestions pertinent to their specific area of expertise, such sex crimes against children (Chapter 7) and using national courts for prosecutions (Chapter 8). Indeed, Chapters 11 and 13 serve as particularly useful tools for those involved in policy, practice, and victim treatment as they systematically outline the pros and cons of a range of special mechanisms used to investigate and prosecute sex crimes; ideas on cost efficiency, how to use current expertise, and modes of victim interaction are laid out here. This anthology is composed of papers presented at the expert seminar Thematic Investigation and Prosecution of International Sex Crimes that was co-organized by the Forum for International Criminal and Humanitarian Law, Yale University, and the University of Cape Town, in Cape Town in 2011. The usefulness of this work must be at least partially credited to the contributors, who work at the Office of the Prosecutor for the ICC, are consultants in the area of transitional justice, work for NGOs, and are university-based academics. It may be the practical experience and expertise of many of the contributors that allow for this work to be such a practical handbook.

The structure of this work means that contributors do not only examine their own analytical themes, but also extensively outline the importance of those themes in reference to specific case studies. These case studies include Sierra Leone (Chapter 4) Spain (which is used to discuss the use of the principle of universal jurisdiction in Chapter 8) and Latin America (Chapter 5). Such an overarching variety of case studies allows due attention to be given to anthropological factors that alter means of investigation and victims’ understanding of the crimes committed. When used in conjunction with Chapters 11, 13 and 15 (which are about prosecutorial strategy, both at investigation and trial phases), this allows those involved in areas of practice at all levels to pinpoint areas in need of improvement and provide a basis for problem solving, relevant to their own geographical reality and area of practice. Contributor selection proves to be well balanced and significant, because by involving those who work within victim care (and not just academia) all relevant concerns for this sector are given full credence and acknowledgement. Thus, critical content keeps itself within the realms of practicability.

As mentioned above, the editors clearly state their objective for this book, which is to assist actors within the criminal-justice sphere (both national and international) to most effectively secure accountability for international sex crimes. This objective prompts contributors to be realistic in their expectations of the courts. It is all too easy for onlookers to become overly idealistic, or alternatively cynical, about the abilities of international courts; this is not a fault that can be levied here. This somewhat practical approach also allows for Thematic Prosecution of International Sex Crimes to be an interdisciplinary work. For example, it examines the political realities of the ICC and its interactions with those it investigates and prosecutes (Chapter 4) and the importance of the medical sector in registering an individual's victim status and facilitating their needs (Chapter 12). The importance of connecting medical and legal activities in this sector is not explored often enough and it is good that it is here, especially as this book aims to be the starting point for expansion on these issues.

Therefore, this book successfully works to give itself a relatively unique position within existing works on international sex crime prosecution because it does not categorize itself as a descriptive historical, conceptual, or purely (and drily) policy-driven work. Although individual chapters may contain elements of these three things, by combining them Thematic Prosecution of International Sex Crimes almost miraculously manages to focus itself at the epicentre of the discipline. The combination of practical and conceptual exploration allows it to rise above the parapet, to provide both macro- and microanalysis of the purpose(s) that the prosecution of sex crimes needs to fulfil.

The conceptual sections of this anthology discuss what could constitute a philosophical rationale for the thematic prosecution of international sex crimes (Chapter 2) and the role of gender in prosecutions. The philosophical aspects presented in this book are refreshingly grounded in the ‘real world’, and are assessed in mind of practical benefits that can be brought. Philosophy on justice is rare in being so immediately relatable to the world that we live in, and this work often uses its philosophical considerations as a secondary foundation for why something should be done, rather than as the primary justification. The relationship between conceptual understandings about the reasons for a need for justice and legal and institutional frameworks that can effect prosecutions is of concern for significant sections of this book. Legal philosophy, unfortunately, can all too easily lose a reader through complex semantics – the method of presentation provided here, and the offering of philosophy alongside real-world examples, prevents that. That this is the case is a testament to the editors and contributors, as being able to present complex ideas both simply and fully simultaneously is a skill I wish more writers with an academic background held.

It is important for experts on international sex crimes to express their views so they transcend traditional disciplinary boundaries simply because those working to achieve the aims of international justice come from a variety of disciplinary backgrounds. Both medical health workers and lawyers working with victims want to bring perpetrators to justice; however the majority of academic work on this issue is aimed at either the one or the other. Thematic Prosecution of International Sex Crimes purposefully ensures that its analysis and critiques are equally accessible by any reader, regardless of background. Additionally, by self-consciously placing itself in the midst of what is an interdisciplinary discussion, the contents of this book provide a solid foundation and springboard for future discussion.

As such, the second objective given is to generate discussion more generally on the issue of prosecuting international sex crimes. I am normally sceptical when an academically based text provides one of its criteria for success as ‘increasing discussion’ because it is tantamount to covering your proverbial academic back. It is a well-rehearsed argument to say that by increasing relevant discussion then awareness, scrutiny, and better justifications for actions or analysis also follow. However, just because it is a well-rehearsed argument does not mean it is not true or effective, and although that same argument provides for this second objective it holds more traction here. That traction is created for several reasons. First, when a text is one of the first of its kind, then it is reasonable for it to want to prompt considered discussion on its subject matter – it is unlikely for a 452-page book to be able to say all that can be said on its contents. Second, when increased awareness, and scrutiny, and improved analysis and justification for actions, may affect the practice of international criminal-justice institutions and individual actors within that sphere beneficially, then this is a more than necessary objective. To that end it is important to say that Thematic Prosecution of International Sex Crimes, whilst saying a lot, does not say everything to be said about international sex crimes. More attention could be paid to male victims of international sex crimes, for example, and the relative difficulties that they face in bringing prosecutions. The study of male victims is relatively new, but it is not so new that it could not have featured. However, this work has a striking self-awareness, inviting readers to expand areas of research such as how prosecutions may (or may not) aid victims, and whether sex crimes are qualitatively different from other potentially comparatively serious international crimes. Indeed, this book paves the way excellently for those wishing to further these research topics, and I would strongly encourage readers to take up this offered invitation to respond to the contents of this anthology.

This self-awareness and desire to be viewed as a book not just for the academic sphere, but also for practitioners and interested parties, and furthermore as a work designed to promote response, can be seen again when the editors reference the position taken by many contributors relative to the position often taken by lobbyists. The contents are wary of an unquestioning and overly enthusiastic welcoming of thematic prosecutions for international crimes, something that many NGOs go against. This is a specific area that should be debated, and hopefully will be, particularly when this book offers itself up (in places) as the initial opposition.

By addressing the subject matter of thematically prosecuting international sex crimes as an anthology, this work possesses several benefits. These include being able to provide a variety of views on this issue; being able to provide equal levels of expertise on a variety of case studies, victim groups, and legal areas; and facilitating internal balanced criticism. Finding a work that is designed to be practically and academically critical, but that is not afraid to hand out praise or recognition where it is due, is hard, but can be done here. That the editors and contributors have created such a book is a credit to them. In short, if this is a subject area that is relevant to you, or is one you find interesting, then read this book!