Opinions

Check out our "Opinions" section to read legal opinion pieces written by members of the UBC Pre-Law Association. This section includes analysis and commentary on various pieces of legislation, judicial decisions, legal codes, and regulations.  

 Photo by Element5 Digital on Pexels 



      In the past few years, Gen Z has gained a reputation as the generation of zero-tolerance. Countless offences are no longer quietly acquitted – corporate negligence, casual bigotry, ankle socks – the list goes on. A social media user is hard-pressed to scroll for five minutes and not find at least one politically-inclined activist post on their timeline. Icons like Greta Thunberg have become the face of our generation. We’re called many things: inspiring, annoying, anarchists. The culture of our generation truly has the activist mindset of the 60s reborn – and yet, unlike the 60s, we seem to have forgotten the most fundamental duty that we have to uphold democracy: voting. 

      Canada’s last federal election in 2021 saw only a 47% turnout from voters aged 18-24 [1]. This is in juxtaposition to a 75% turnout from voters aged 65-74. These are voters who have vastly different values than we do, vastly different policy concerns than we do. And it’s not just Canadians – America’s last election in 2024 saw roughly only a 42% turnout of eligible voters aged 18-29 [2]. And there are many reasons to which we can attribute this phenomenon — our options suck, we don’t feel that voting makes a difference, we feel our future is already doomed, when celebrities tell us to “get out and vote” it’s cringey to such an extent that it strips the institution of voting of all its sobriety, so on and so forth. No one wants to hear a 60-something year old tell us they understand the perils of being a young person in today’s society, because no you do not. In 2023 I attended the Ontario Liberal Leadership Debate at Toronto Metropolitan University. When asked if they knew what the minimum wage was, in a room full of young people who were likely working minimum wage jobs in the second most expensive city in Canada, precisely one (1) of the five candidates onstage knew what it was [3]. These politicians are already homeowners, they’ve already gone through schooling, and they don’t grocery shop according to the NoFrills weekly flyer deals. So of course we’re disconnected from the institution of voting; the people we’re supposed to vote for are disconnected from us. 

      Here’s the thing: as much as it feels pointless and disheartening to vote for someone you don’t think is particularly worthy of your vote, it is the fundamental basis of democracy. That’s simply it. There is no perfect party and there is no perfect candidate; there never has been and there never will be. There is corruption in politics; there always has been and there always will be. As much as that sucks, that is the system we have. Our generation will sign and share petitions all day to protest policies endorsed by politicians who gained power from elections in which we abstained from voting. Does that not seem a little – dare I say – hypocritical? And I am in no way arguing that if we all just get out and vote then everything will be okay and we’ll never have to protest or organize again. What I am saying is that: 

  • It is hard to hold high ground on a matter in the origins of which you abstained from participating; and 

  • One day the folks of our generation are going to be the primary contributors to the economy. As far away as that day may seem, we will be operating in a society built on policies and cultural norms that are set by the politicians we elect now. 

But we’re not electing anyone now – our parents and grandparents are. And I don’t care who your grandparents are, or how well-intentioned they are, they do not truly know what you need to see from our elected public officials. 

      One objection I’d like to cautiously address is the vote abstinence as a form of protest against the government. I’m not here to tell anyone how they can or cannot protest or what is worth protesting. We are all entitled to varying levels of disgrace for the government. So if you want to refuse to vote because you genuinely cannot bring yourself to support the government in that way, then it is your right to do so. But I do believe that a much larger scope of eligible voters are mistaking this very intentional form of protest for an anarchist mindset that anyone can adopt and feel good about. There is a difference between abstaining from voting for personal and/or meaningful ties to the government, and not voting out of apathy and calling it a radical stance. 

      While I am not generally of the opinion that government interference is the answer to individual matters, I do wonder about certain measures such as mandatory voting. In Australia, voting is compulsory and those who fail to comply are fined. Anyone from North America might hear this and think it cruel that citizens are made to stand out in those long lines without water/food/bathroom access. But unlike Georgia, where as of 2021 it is illegal to engage in “line warming” – the practice of handing out food and water to potential voters in line – Australians actually see engaging in democratic practices as an opportunity to come together and have a good time. Lines of potential voters are treated to a barbecue, vendors get out and sell, one mother even recounts there being bouncy castles set up at a voting station on a school ground to excite future voters [4][5]. So while “mandatory voting” may sound like a chore to those of us who are deprived of a positive voting culture, if done correctly it actually seems healthy and beneficial for society on multiple fronts. Not to mention that mandatory voting would also encourage people to educate themselves on relevant issues and candidates. Again, while I normally appreciate the individual’s right to minimal government interference, I do believe that there is a time and place for the government to exercise its power in the interest of upholding high-functioning democracy. Voter turnout rates continue to drop as the eligible voter collective gains nothing but pessimism for our future. Perhaps we have gotten to a moment in time when, much like taxes, mandatory voting is a necessary government edict. 

      As Canadians, our politics are often cast aside from public interest. With a neighbour like the United States, politicians have tough competition on the entertainment (drama) front. Canadians love to harbour this comforting thought that “at least we’re not American”. But culture can transcend physical borders quickly and inconspicuously. Voting matters because we can’t take any norms for granted. What’s more, American politics directly affect us north of the border – just this weekend President Trump announced 25% tariffs on Canadian imports. In response, Prime Minister Trudeau announced 25% tariffs on American imports [6]. Who we vote for matters because they are the one to deal with the people we can’t vote against.

      If only Gen Z could cast our ballots via Instagram story. 


Bibliography

[1] “Youth Voting Trends in Canada.” Youth Voting Trends in Canada | Elections Canada’s Civic Education. Accessed February 15, 2025. https://electionsanddemocracy.ca/canadas-elections/youth-voting-trends. 

[2] “Young People and the 2024 Election: Struggling, Disconnected, and Dissatisfied.” Circle at Tufts, January 15, 2025. https://circle.tufts.edu/latest-research/2024-poll-barriers-issues-economy.

[3] Polichronis, Alexa. “Top 10 Most Expensive Cities to Live in Canada – 2025.” MovingWaldo, December 30, 2024. https://www.movingwaldo.com/where-to-live/most-expensive-cities-in-canada/.

[4] Sneed, Tierney, and Dianne Gallagher. “Judge Partially Strikes down Georgia Ban on Giving Voters Food and Water in Polling Lines | CNN Politics.” CNN, August 19, 2023. https://www.cnn.com/2023/08/18/politics/georgia-election-law-ban-food-water-voters-line/index.html. 

[5] “In Australia, Voting Is Mandatory, Easy and Often Fun. Is There a Lesson for Canada? | CBC Radio.” CBCnews, December 28, 2019. https://www.cbc.ca/radio/day6/mandatory-voting-canada-s-weediversary-fighting-alongside-the-kurds-atwood-archives-dolly-parton-more-1.5324795/in-australia-voting-is-mandatory-easy-and-often-fun-is-there-a-lesson-for-canada-1.5324822. 

[6] “Here Are All the Ways Canada Is Striking Back against Trump’s Tariffs | CBC News.” CBCnews, February 3, 2025. https://www.cbc.ca/news/politics/canada-strike-back-trump-tariffs-1.7448552.


     

Feb 17, 2025

Opinion: Gen Z is Really Doing the Most – Except Voting

Written by Emma Walton

Emma Walton is a third-year student majoring in Honours Philosophy 





  Photo by Dyana Wing So on Unsplash


      Freedom of speech is often regarded as a foundational pillar of American democracy, enshrined as one of five protected categories in the First Amendment of the US Constitution. The Amendment stipulates that Congress shall make no law “abridging the freedom of speech”[1]. The US is fairly isolated from much of the world in its toleration of hate speech [2], generally prioritizing an almost absolute interpretation of free speech, with the exception of fighting words, obscenities, and some time, manner, and place circumstances. But what issues arise from such strong protection? Can a near absolute interpretation of the First Amendment address the issues associated with hate speech? Countries like Canada have taken a more nuanced approach in protecting speech (“expression”) in Section 2b of their Charter of Rights and Freedoms, while also placing reasonable limits on protecting speech in Section 1 of the Charter, if such limits can be “demonstrably justified in a free and democratic society”[3]. 

      The imposition of these limitations on speech balance individual rights with public safety and societal well-being, ultimately placing restrictions on hate speech that are not seen in the US. I contend that the Canadian pressing, substantial, and proportional model in evaluating whether to restrict hate speech is preferable to the US’s clear and present danger model, as the former better promotes social harmony by protecting vulnerable populations and mitigating risks associated with harmful rhetoric. A historical examination of case law in the United States and Canada can best exhibit the decisions and discourse surrounding the protection of hate speech. Such investigation also supports the aforementioned thesis in addressing the valid concerns of American legal theorists who posit heavy restrictions on speech pave the way for authoritarian governmental behavior. 

      One of the most notable US cases emphasizing the importance of free expression over restrictions is R.A.V. v. City of St. Paul (1992). The City of St Paul made it a criminal offense, under a newly created St. Paul Ordinance, to display on public or private property any symbol known to provoke “anger, alarm, or resentment” based on “race, creed, religion, or gender” [4]. A teenager was eventually convicted under the Ordinance, having burned a cross on the lawn of an African American family [5]. When the legality of the Ordinance was challenged, the Minnesota Supreme Court upheld its existence, arguing that it was essential to protect the basic human rights of groups historically discriminated against, including the right to live in peace wherever they chose [5]. While the Supreme Court of the United States (SCOTUS) found the human rights concern compelling, they overturned the Ordinance, citing issues with the “content-based” character of its focus on race, religion, gender, etc [5]. 

      Before serving on SCOTUS, Justice Elena Kagan was an Assistant Professor of Law at the University of Chicago. She wrote on the R.A.V v. City of St Paul decision, noting the court asserted the Ordinance had discriminated between different viewpoints. Justice Scalia, who authored the unanimous decision, found the Ordinance effectively prohibited “racist and sexist fighting words, while allowing others” [6]. Additionally, SCOTUS contended the facially content-based Ordinance represented a “danger of censorship” [5]. The Ordinance ultimately did not meet the criteria of the Clear and Present Danger test, designed to determine if printed or spoken word could be subject to restriction. The Court did not believe a clear, substantive ‘evil’ would follow the expression imposed by the teenager, nor did they believe any danger of the expression was imminent [7]. Consequently, because the viewpoint-based Ordinance did not fall within any of the specific exceptions to First Amendment protection, SCOTUS found the First Amendment had been ‘infringed upon’ [5]. 

      As previously mentioned, Canada has a different test in determining whether or not speech should be protected or restricted. The case of R v. Keegstra (1990) was decided upon using the Canadian Oakes Test. R v. Keegstra concerned Mr. James Keegstra, a high school teacher in Eckville, Alberta, who was eventually charged with “unlawfully promoting hatred against an identifiable group” [8]. Mr. Keegstra had communicated anti-semitic statements to his students, describing Jewish people “treacherous”, “subversive”, “sadistic”, “money-loving”, “power-hungry”, and “child-killers” [8]. The Supreme Court of Canada (SCC) was tasked with determining whether Mr. Keegstra’s speech could be limited via Section 1 of the Canadian Charter; was his punishment ‘demonstrably justified in a free and democratic society’? In deciding so, the SCC turned to the test it had developed in 1986 with Regina v. Oakes [2]. The model, referred to as the Oakes Test, asks whether a certain limitation of speech addresses a pressing and substantial concern in a ‘free and democratic society’ and also whether the restriction is proportional to the danger of the speech, so as to not diminish the principles that justify free expression [2]. 

      Kevin Saunders Degradation: What the History of Obscenity Tells Us about Hate Speech details the SCC found Keegstra’s hate propaganda to be of concern, having a negative impact on targeted groups and creating “discord in society” [2]. In deciding the speech was pressing and substantial, the Court noted the spirit of Canada as a nation which prides itself on “tolerance, human dignity, and respect for diverse groups” [2]. The SCC additionally found there was proportionality in the restriction of Keegstra’s speech. Believing the core value behind the protection of freedom of expression to be the “search for truth and the common good”, the Court did not believe restricting Keegstra’s speech would threaten the principles that justify free expression [2]. 

In their decision, the SCC noted:

 “There is very little chance that statements intended to promote hatred against an identifiable group are true, or that their vision of society will lead to a better world. To portray such statements as crucial to truth and the betterment of the political and social milieu is therefore misguided” [2].  

   

      In essence, the Court used the Oakes test to determine the restriction of Keegstra’s speech was in fact “demonstrably justified in a free and democratic society”, given Section 1 of the Canadian Charter [3]. The rulings in R.A.V v. City of St Paul and R v. Keegstra underscore the differences between the American Clear and Present Danger test and Canada’s Oakes test in restricting hate speech. I argue the incorrect decision was made in the case of R.A.V v. City of St Paul, largely due to the limitations of the Clear and Present Danger test, which is ultimately inferior to the Oakes test in balancing the value of free expression against the need for social harmony. 

      To prove this point, I will point to legal scholarly critiques of the language used in the Clear and Present Danger test. I will also explore the test’s shortcomings by examining the evolving views of Justice Oliver Wendell Holmes Jr. His shifting interpretation of the test in Schenk v. United States (1919) (in which it was established) and Abrams v. United States (1919) additionally highlights the issues within its text.  

      American legal scholar Cass Sunstein’s “Does the Clear and Present Danger Test Survive Cost-Benefit Analysis?” highlights notable problems with the test’s criteria by using a contemporary thought-experiment example. He introduces the concept of a hypothetical advanced predictive technology, capable of asserting what causes will produce certain effects. If the technology shows a high probability that a certain kind of speech-promoting - such as terrorism - will result in thousands of deaths over a span of months or years, the Clear and Present Danger test would fail to justify regulation due to a lack of “imminence” or immediacy of the threat [7]. Likewise, in another example where the likelihood of harm caused by speech-promotion was low, a one-in-five chance per say, but the consequences are severe, Sunstein maintains the test would fail again because the danger could not be perceived as “clear” [7]. 

      Yet in both cases, Sunstein maintains it would “seem odd” for a court to determine regulation should be off-limits [7]. I agree. Additionally, considering the spirit of the pressing, substantial, and proportionality aspects of the Oakes test, it is likely a different outcome could be determined in the Canadian jurisdiction, with the speech-promotion being demonstrably restricted via Section 1 of the Canadian Charter. What Sunstein contends is that the Clear and Present Danger test lacks adequate “cost-benefit” balancing on the assumption that such balancing “generally produces excessive regulation” [7]. The proportionality criteria in the Oakes test is pivotal in ensuring overregulation does not occur. 

      In the context of R.A.V. v. City of St Paul, I suggest there is no social harmony in burning a cross on the lawn of an African American family with racially motivated reasons. Perhaps where SCOTUS failed to see the immediacy or clear danger in doing so, a pressing, substantial, and proportional examination would have led to a different decision, one in which the principles of freedom of expression are certainly not compromised. There is also an important point in mentioning that though the US is revered for its strong protection of expression, there are instances where the Clear and Present Danger test has historically failed to prevent overregulation of speech. One only needs to look at the decision in Schenck v. United States (1919). Charles Schenck was the Secretary of the Socialist Party of America in 1917. He was involved in opposing World War I, and helped distribute 15,000 anti-draft leaflets [9]. He was indicted and convicted under the Sedition Act of 1917 for conspiring to obstruct military recruitment and induce insubordination [9]. Schenck appealed his conviction to the Supreme Court, arguing that it violated his First Amendment rights to free speech and free press. The Supreme Court upheld Schenck’s conviction, reasoning that the ongoing war between the US and Germany rendered his efforts to disrupt the draft as speech "outside the protection of the First Amendment” [9]. Justice Holmes expressed Schenck’s speech constituted an “evil” prohibited by Congress, and that the “clear and present” danger they posed justified restriction [9].

      However, Justice Holmes would notably modify his interpretation of the Clear and Present Danger test in Abrams v. United States (1919) [10]. Abrams v. United States was similar to Schenck v. United States in that the case involved several individuals, including Jacob Abrams, who were charged with violating the Sedition Act of 1917. Abrams distributed leaflets throughout New York City, calling for workers to strike in protest of the war and the government’s international affairs [10]. Though Abrams would be convicted, Holmes represented the dissenting opinion, believing the clear and present criteria had not been met given the facts of the case. 

He is quoted as saying: 

“Now nobody can suppose that the surreptitious publishing of a silly leaflet by an unknown man would present any immediate danger that its opinions would hinder the success of the government arms or have any appreciable tendency to do so” [10]. 

     

      This dissenting opinion ultimately represents a more sophisticated analysis of the First Amendment, as Holmes has switched to engaging in a more “sympathetic, statutory construction” [10]. Justice Holmes was correct in modifying his interpretation of the Clear and Present Danger test. Yet the conviction of both Schenck and Abrams represent the flaws of the test, flaws that are absent from the Canadian Oakes test. An examination of Schenck v. United States and Abrams v. United States considering the pressing, substantial, and proportional aspects of each case would likely have resulted in different rulings — ones that Justice Holmes would have found more agreeable in the context of Abrams v. United States and retrospectively in Schenck v. United States. 

    This paper has provided a comprehensive analysis of the US and Canadian approaches to speech protection and restriction, using the cases of R.A.V. v. City of St. Paul, R v. Keegstra, Schenck v. United States, and Abrams v. United States to highlight the differences between the two legal systems. These cases illustrate how the US and Canadian tests for limiting speech have led to distinct judicial outcomes. Such outcomes illustrate the limitations of the US Clear and Present Danger test, particularly in its failure to account for the broader social consequences of hate speech, compared to the more nuanced Oakes test used in Canada. The Oakes test enables a more effective balance between protecting free speech and mitigating the harmful effects of hate speech, addressing societal concerns while also proving more effective than the US model in preventing overregulation. The US should look to their northern neighbors for guidance on regulating hate speech, to avoid the under-regulation seen in R.A.V. v. City of St. Paul and the over-regulation observed in Schenck v. United States and Abrams v. United States in the future. Such a change would ensure broader access to justice and legal protections for the nation, where both individual rights and societal well-being are safeguarded and respected.  


Bibliography

[1] U.S. Constitution, Amendment I. The US Bill of Rights: A Transcription. National Archives. 

[2] Saunders, Kevin. Degradation: What the History of Obscenity Tells Us about Hate Speech, Wall and Project Muse University Press eBooks. First Edition. New York University Press, 2011. 

[3] Canada, Canadian Charter of Rights and Freedoms, s. 1, Constitution Act, 1982, (U.K.), 1982. 

[4] La Selva, Samuel. “US Supreme Court & Hate Speech: RAV v. City of St Paul” Lecture at the University of British Columbia, Vancouver, November 5, 2024. 

[5] Dyzenhaus, David, Moreau S. R., and Ripstein A. “R.A.V v City of St Paul (1992)”, Law and Morality: Readings in Legal Philosophy, University of Toronto Press, Third Edition, 2007. 

[6] Kagan, Elena. "Regulation of Hate Speech and Pornography After R.A.V." The University of Chicago Law Review, pp 873-902, 1993.

[7] Sunstein, Cass R. "Does the Clear and Present Danger Test Survive Cost-Benefit Analysis?" Cornell Law Review, Seventh Edition, 2019. 

[8] Dyzenhaus, David, Moreau S. R., and Ripstein A. “R v Keegstra (1990)”, Law and Morality: Readings in Legal Philosophy, University of Toronto Press, First Edition, 1996. 

[9] Miller, Wilbur R. "Schenck v. United States." In The Social History of Crime and Punishment in America: An Encyclopedia, edited by Miller, Wilbur R., 1606-1606. Thousand Oaks, CA: SAGE Publications, Inc., 2012.

[10] Smith, Stephen A. Schneck v. United States and Abrams v. United States. Free Speech on Trial: Communication Perspectives on Landmark Supreme Court Decisions, University of Alabama Press, 2003.


Dec 22, 2024

Opinion: It’s Time for the US to Rethink Its Approach to Protecting Hate Speech

Written by Michael Vento

Michael Vento is a fourth-year student majoring in Political Science and minoring in Law & Society. He is also a Dual-Citizen of the United States & Canada. 




The International Criminal Tribunal for the former Yugoslavia in The Hague.  By Julian Nyča, CC BY-SA 4.0.

Introduction

Almost every conflict is plagued with conflict-related sexual violence. Whether it be opportunistic or strategic, sexual violence affects all persons in society: men, women, children, and people outside the gender binary. Sexual violence during armed conflict has recently been coined as a ‘weapon of war’ and is increasingly understood as a strategic tool employed systemically to intimidate and terrorise the enemy instead of being conceptualised as individual instances or honour crimes. In various conflicts, sexual violence has taken on an additional purpose: genocide. In this paper, I will be exploring the relationship between sexual violence and genocide to argue that sexual violence is, in fact, a perpetuation of the crime of genocide and should be prosecuted as such.

I will first look at the definition of genocide according to the 1948 Genocide Convention and how different forms of sexual violence can be used in pursuance of genocide. Then, I will look at the prosecution of the International Criminal Tribunal for the former Yugoslavia (ICTY) to illustrate the prosecution of sexual violence without reference to genocide. To establish this link between sexual violence and genocide as seen by international tribunals, I will look at the reasoning in International Criminal Tribunal for Rwanda (ICTR) for its landmark case of Akeysu. Next, I will examine the Rome Statute and the cases and arrest warrants made by the permanent International Criminal Court (ICC). To conclude, I will look at the implications of the selective narrative of international courts and how future amendments of Article 6 of the Rome Statute could positively impact future prosecution.

Defining Sexual Violence as Genocide

Genocide, outlined in Article 2 of the Genocide Convention, is when the perpetrator targets a “national, ethnical, racial or religious group” [1] by committing one of the acts of genocide listed in the Genocide Convention and has the specific intent to destroy, in whole or in part, the group. Though sex or gender is not a persecuted group for genocide, as it lacks the biological element linked to reproducing the population, the acts of genocide can constitute sexual violence and may disproportionately affect women. Furthermore, as long as the intent to commit sexual violence is in pursuance of a genocidal goal, ‘to destroy the group’ then sexual violence should be prosecuted as such.

Let’s consider the first four acts of genocide to show how sexual violence functions as a method of genocide. The first act of genocide is “killing members of the group,” [2] which can occur as a direct result of sexual violence, penetration by sharp objects, suicide after sexual violence, or even, in the case of the Rwandan genocide, ‘rape squads’ that existed to infect victims with HIV. Second, the act of “causing serious bodily or mental harm” [3] is clearly linked to the physical and long-term mental consequences of many forms of sexual violence, rape, or genital mutilation. The third act of genocide is “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.” [4] This element of destruction can materialise as a result of sexual violence in many ways, such as shame and humiliation impacting community ties, especially since many acts of sexual violence occur publicly. Even destruction in terms of life quality and functioning after the act due to the resulting trauma impeding other abilities to thrive, such as schooling, might constitute as such. The fourth relevant act of genocide that might constitute sexual violence is “imposing measures intended to prevent births.” For example, curtailing reproduction as a result of sterilisation or physical injuries, using rape camps to influence the genetic makeup of children, and, finally, psychological trauma or community stigma can all prevent future births within a community.

Sexual violence has been used to subordinate, emotionally destroy entire communities, and ensure the destruction of a group. Sexual violence can be used as a tool in the furtherance of the purpose of genocide, to destroy an ethnic group, in the immediate and long-term sense according to the acts listed in the widely accepted definition of genocide in the Genocide Convention and identical provisions as seen in Article 6 of the Rome Statute, Article 4 of the ICTY, and Article 2 of the ICTR.

Relying on these international provisions, I will now compare significant developments in the prosecution of sexual violence between the ICTY, ICTR, and ICC to evaluate its prosecution in a genocidal context and evaluate possible narrative explanations and legal remedies.

Yugoslavia: Sexual Violence as Crimes against Humanity

During the 1992-1995 Yugoslav war, the use of sexual violence as a weapon of war first received widespread attention and subsequent prosecution. Sexual violence was instrumental in the Serbian genocidal campaign against Bosnian Muslims. However, this was not pursued as related crimes during their first convictions of sexual violence. There were five patterns of sexual violence in this conflict identified by the 1994 UN Security Council’s Commission of Experts: (1) sexual violence targeted against an ethnic group; (2) public displays of sexual violence; (3) the perpetuation of rape and sexual violence by, or with the knowledge of camp commanders; (4) targeting women “for the purpose of terrorising and humiliating them often as part of the policy of ‘ethnic cleansing’” [5] (UN Commission of Experts 1994); and, (5) the containment of women for the purpose of providing sexual services [6]. It is difficult to know the exact number of cases of sexual violence, but estimates fall between 30,000 to 50,000 [7].

Clearly, sexual violence against women was not solely an attack against the individual civilian woman but rather were attacks on woman’s bodies and reproductive capabilities as part of a larger attack against the ethnic group. This report highlighted the larger systematic and strategic plan by Serbian leaders to fulfil a policy of genocide to create a “‘Greater Serbia’: religiously, culturally, and linguistically homogenous Serbian nation” [8]. Notably, as identified by the UN Expert Report, forced pregnancies were used in furtherance of reducing the Muslim population due to the patrilineal society backing this pursuit [9]. Though biologically the child is genetically equal between the parents, the common cultural patriarchal understanding fosters the pursuit of forced pregnancies as the child will likely be locally considered Serbian [10]. So this belief of affecting the ethnic composition of a targeted population through forced pregnancy shows how this act is a means for accomplishing genocide as an act of “causing serious bodily or mental harm” by forcing women to carry and give birth to babies resulting from rape or of a different ethnic group. Furthermore, the genocidal act of “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part” can be attributed to forced pregnancy as genocide.

In response to the conflict, the United Nations Security Council established the International Criminal Tribunal for the former Yugoslavia (ICTY) in 1993 to prosecute crimes committed during the civil war. This criminal tribunal was very important for advancing the prosecution of sexual violence and recognising its gravity through prosecution under international law. However, the tribunal, at first, did not pursue prosecution of sexual violence in relation to the legal provision of genocide. Even though this was clearly a case of mass rape as a function of genocide, the Tribunal pursued sexual violence charges under crimes against humanity and war crimes. Furthermore, forced pregnancy was not pursued as a conviction by the ICTY, even though the intent behind this act, to affect the ethnic composition, is clearly an act of genocide.

The first three charges related to sexual violence did establish criminal responsibility under international law for sexual violence crimes, Prosecutor v. Kunarac, Kovac, and Vukovic; however they did not link the crimes to genocide. Nonetheless, they did help shape the legal basis for its eventual prosecution as seen in Prosecutor v. Jean-Paul Akayesu. For example, in Prosecutor v. Kunarac, though Kunarac was a special unit commander for reconnaissance of the Bosnian Serb Army [11] and despite the presence of evidence for possible genocidal mens rea, Kunarac was convicted of sexual violence as a crime against humanity and as a war crime.

I think it is important to legally acknowledge all facets in which sexual violence is perpetuated, as war crimes, crimes against humanity, and genocide, not to reduce these women or people to their ethnicity or reproductive functions but to highlight the gravity of sexual violence as an attack against women and groups of people for the purpose of destruction. Furthermore, there shouldn’t exist a hierarchy of acts of genocide, such as murder over sexual violence, that contributes to its lack of convictions. Clearly, these acts of sexual violence are crimes against ethnic groups and women, separate from the act itself, and thus should be prosecuted as such.

Rwanda: Prosecutor v Jean-Paul Akayesu

The first case that gave way to precedent for rape and crimes of sexual violence as being considered acts of genocide was Prosecutor v. Jean-Paul Akayesu in 1998. Akayesu was mayor of the Taba commune in Rwanda. Many displaced civilians, mostly Tutsi, sought refuge under the protection of Akayesu, a Hutu [12]. Sexual violence was an integral part of the process of destruction of the Tutsi group as a whole. During his trial, many women testified to being subjected to repeated rape by militia and witnessing gang rapes and murder of other Tutsi women under Akaesy’s watch [13]. So, as an extension of Akayesu’s presence during these acts and the failure to prevent them, he subsequently facilitated and “encouraged them” [14]. Furthermore, also as a result of this position of authority, the Chamber stated that “his open encouragement was a clear signal of official tolerance for sexual violence, which would not have happened if he had not done so” [15]. However, the defence pleaded not guilty on all counts on the grounds that he was not in a position to prevent these acts without risking his life, essentially subject to political pressure [16]

Nonetheless, the ICTR, established in 1994, convicted Akayesu of rape as a crime against humanity and an element of genocide for the first time. The tribunal included rape in its definition of torture, which qualifies as a crime against humanity and an element of genocide; furthermore, the ICTY noted rape’s use for “intimidation, degradation, humiliation, discrimination, punishment, control, or destruction of a person” [17]. The ICTR convicted Akayesu of genocide based, in part, on charges of rape. The Trial Chamber pursured the acts of genocide of “killing a member of the group” and “causing serious bodily or mental harm to members of the group” in relation to the crimes sexual violence. Not only was rape accompanied by an intent to kill but also for harm, as rape reflected the “determination to make Tutsi women suffer and to mutilate them even before killing them” [18]. So, all in all, sexual violence, according to the ICTR, constitutes genocide in the same way any other genocidal act does, as long as the intent to destroy, in whole or in part, a particular group is present.

Though the trial didn’t charge Akayesu with “measures intended to prevent births within the group” the ICTR decided to clarify the elements of genocide; in which, they further qualified this genocidal act in relation to sexual violence. They argued that rape can have this effect psychologically if “the person raped refuses subsequently to procreate” due to trauma, for instance [19]. Furthermore, other measures include “sexual mutilation, the practice of sterilization, forced birth control, separation of the sexes and prohibition of marriages” [20]. Finally, it further noted how in patriarchal societies, where identity is determined by the father, impregnation with the intent to birth a child of a specific composition to affect the composition of the victims group also constitutes preventing births [21].

This case was the first time rape was prosecuted as a crime of genocide and a crime against humanity. This set a new legal precedent that crimes of sexual violence, so long as they are in accordance with the UN definition of genocide, can be prosecuted as crimes of genocide. This precedent was very important for the international recognition of the severity of sexual violence as a tool of war and the prosecution of gender-based crimes. Furthermore, it emphasized the suffering of victims as well as its role as a tool of their destruction as women and as part of their ethnicity.

The Rome Statute and the ICC

The founding document of the ICC, the Rome Statute, and its subsequent Elements of Crimes are the first international instruments to codify the elements of sexual violence such as rape or forced pregnancy. The Rome Statute is quite significant in that, like the decisions found by the ICTY and ICTR, sexual crimes are considered attacks on the victim's bodily integrity and agency, often as a larger attack beyond the act itself.

To date, charges of sexual violence have only convicted two persons at the ICC, one of which was overturned. These arrest warrants and charges of sexual violence were brought to the court as crimes against humanity or war crimes until 2010 when the ICC issued a second arrest warrant for Sudanese President Omar al-Bashir that included sexual violence being committed in furtherance of the crime of genocide. Al-Bashir’s charges include three counts of genocide and rape was expressly noted as a component of his “genocidal policy” [22].

The initial investigations of the situation in Darfur classified rape under war crimes and crimes against humanity, even though crimes of genocide were also being investigated [23]. However, the second arrest warrant that includes rape as an act of genocide illustrates a positive trend toward comprehensive prosecution of sexual violence and gender-based crimes within the Court’s jurisdiction. Furthermore, this aim is also explicitly mentioned in the 2014 Office of the Prosecutor’s Policy on Sexual and Gender-Based Crimes, in which the policy recognizes that the Rome Statute “authorises the Court to exercise jurisdiction over sexual and gender-based crimes if they constitute acts of genocide” [24].

In light of additional arrest warrants and policy reports, the ICC has acknowledged that acts listed in the Article 6 definition of genocide may be perpetuated by way of sexual violence. However, what still needs to be explored is the selection and treatment of victims and perpetrators in relation to sexual violence crimes being incoherent and how including sexual violence explicitly as acts of genocide will ensure proper and objective treatment during trials and continue the furtherance of acknowledging sexual violence in conflict and under international law.


Selective Narratives

Part of the reason why, in comparison to other crimes, few cases have included sexual violence is partially due to the conception of it being less atrocious. Christopher Rudloph posits that the strategic interests of powerful states influence the application of international criminal and humanitarian law [25]. Thus, since law and the types of crimes we try are heavily influenced by the politics of states and pressure from civil society, the treatment of sexual violence in international criminal justice has undergone evolutions and is in need of pressures to acknowledge the gravity and multifaceted use of sexual violence in different conflicts including genocide to eventually eliminate a hierarchy of crimes and facilitate universal application of international law. MacKinnon argues that these under-prosecutions can be attributed to the sex of victims partially because human rights violations against women are often targeted and sexual or reproductive in nature and that the international community deems them too specific to be met with an effective response [26].

Furthermore, our notions of who can be a victim and a perpetrator can influence these cases of sexual violence in general, and as an act of genocide. The focus of these crimes, understandably, is often female-centered, meaning cases including male victims or female perpetrators are often unreported or untried. Kaiser and Hagan argue that this “[encourages] dangerous assumptions that only women experience sexual assault, and that only men perpetrate it” [27]. These rigid interpretations of gendered roles during conflict and genocide further stunt the recognition of nuanced criminal prosecution. For instance, the Akayesu case fits the archetype of the man in power inflicting rape and sexual violence on women in the victim group. However, in cases that challenge this narrative, such as Prosecutor v. Nyriamasuhuko, there is hesitation to prosecute crimes of sexual violence as acts of genocide [28]. Similar to Akayesu, Nyriamashuko was charged with acts of sexual violence as part of her participation in the genocide. Though the prosecutors were unable to convict her for genocide and sexual violence separately, the failure to prosecute her for the sexual crimes in relation to genocide might provide insight into an inability to view similar crimes carried out by men and women equally in severity [29]. Even cases of mass rape against men as a tool of emasculation before death, as evidenced in the conflict in Darfur referred to the ICC, require an assessment of our existing definitions and understandings of genocidal crimes that correspond to the realities of genocide even if they stray from familiar narratives to allow for the fair prosecution of international crimes.

Future: Should sexual violence be a listed prosecution for genocide?

In light of these realities of prosecuting sexual violence as genocide, would an amendment to the Rome Statute explicitly listing sexual violence as a constituent act of genocide benefit its prosecution? This addition could include gender as a group for destruction and expressly acknowledge that sexual violence can fall under multiple of the sub-elements of genocide. Including sex as a target in and of itself which would address how women are not only targeted as a function of their membership in a group but precisely because of their reproductive capability for the continuity of their group. Not only would this aid in evaluating prosecution and responsibility, but also provide textual clarity and establish rape as a jus cogen norm. Jus cogens are fundamental principles of international law accepted by all as a norm from which no derogation is permitted; if sexual violence and gender-based crimes in pursuit of destruction were codified, this would further avoid textual ambiguity and posit an obligation to prosecute perpetrators.

[1] Rome Statute of the International Criminal Court

[2] Convention on the Prevention and Punishment of the Crime of Genocide

[3] Convention on the Prevention and Punishment of the Crime of Genocide

[4] Convention on the Prevention and Punishment of the Crime of Genocide

[5] UNSC, “UN Commission of Experts 1994”

[6] Meger, Rape loot pillage

[7] Bos, “Feminists Interpreting the Politics of Wartime Rape”

[8] Short, “Sexual Violence as Genocide”

[9] UNSC, “UN Commission of Experts 1994”

[10] Short, “Sexual Violence as Genocide”

[11] Rogers, "Sexual Violence or Rape as a Constituent Act of Genocide"

[12] Short, “Sexual Violence as Genocide”

[13] Meger, Rape loot pillage

[14] Prosecutor v. Jean-Paul Akayesu, Indictment

[15] Prosecutor v. Jean-Paul Akayesu, Indictment

[16] Rogers, "Sexual Violence or Rape as a Constituent Act of Genocide"

[17] Prosecutor v. Jean-Paul Akayesu, Indictment

[18] Rogers, "Sexual Violence or Rape as a Constituent Act of Genocide"

[19] Short, “Sexual Violence as Genocide”

[20] Rogers, "Sexual Violence or Rape as a Constituent Act of Genocide"

[21] Rogers, "Sexual Violence or Rape as a Constituent Act of Genocide"

[22] Simons, “International Court Adds Genocide to Charges against Sudan Leader.”

[23] Fairbanks, "Rape as an Act of Genocide"

[24] The Office of the Prosecutor. “Policy Paper on Sexual and Gender-Based Crimes”. 

[25] Meger, Rape loot pillage

[26] Meger, Rape loot pillage

[27] Fairbanks, "Rape as an Act of Genocide"

[28] Fairbanks, "Rape as an Act of Genocide"

[29] Fairbanks, "Rape as an Act of Genocide"

Works Cited

Bos, Pascale. “Feminists Interpreting the Politics of Wartime Rape: Berlin, 1945; Yugoslavia, 1992-1993,” Journal of Women in Culture and Society. 31, no. 4. 2006. 

Fairbanks, Bailey. "Rape as an Act of Genocide: Definitions and Prosecutions as Established in Bosnia and Rwanda," Historical Perspectives: Santa Clara University Undergraduate Journal of History, Series II: Vol. 23 , Article 13. 2019.

Meger, Sara. Rape loot pillage : the political economy of sexual violence in armed conflict. Oxford New York : Oxford University Press. 2016.

Prosecutor v. Jean-Paul Akayesu, Indictment, Int'l Crim. Trib. of Rwanda. Sept. 02, 1998.

Prosecutor v. Kunarac, Judgment. Int'l Crim. Trib. for the Former Yugoslavia. Feb. 22, 2001.

Rogers, Shayna. "Sexual Violence or Rape as a Constituent Act of Genocide: Lessons from the Ad Hoc Tribunals and a Prescription for the International Criminal Court," George Washington International Law Review 48, no. 2. (2016): 265-314 

Rome Statute of the International Criminal Court. Jul. 17, 1998, https://www.icc-cpi.int/sites/default/files/Publications/Rome-Statute.pdf (the Rome Statute entered into force on July 1, 2002).

Russell-Brown, Sherrie. “Rape as an Act of Genocide,” Berkeley J. Int'l Law, vol. 21, Article 5. 2003.

Short, Jonathan M. H. “Sexual Violence as Genocide: The Developing Law of the Internatinal Criminal Tribunals and the International Criminal Court.” Michigan Journal of Race & Law, vol. 8, no. 2, 2003.

Simons, Marlise. “International Court Adds Genocide to Charges against Sudan Leader.” The New York Times, July 13, 2010. https://www.nytimes.com/2010/07/13/world/africa/13hague.html. 

The Office of the Prosecutor. “Policy Paper on Sexual and Gender-Based Crimes”. International Criminal Court. June 2014.

United Nations Security Council. “UN Commission of Experts 1994: Letter Dated 24 May 1994 From The Secretary-General To The President of the Security Council”. https://www.icty.org/x/file/About/OTP/un_commission_of_experts_report1994_en.pdf. 1994.


Oct 18, 2024

The following article discusses specific details of sexual assaults.

Opinion: Sexual violence should be a listed prosecution for genocide

Written by Morgan Hutchison

Morgan Hutchison is a third year dual degree student majoring in Politics and Government and International Relations.



We must place limits on Canadian Supreme Court appointments 

Maya Mior - June 10th, 2024

Opinion

The past several years of United States politics have served as a clear cautionary tale against a highly politicized and deeply polarized Supreme Court. Notably, scrutiny of the legislation governing Supreme Court justices has extended beyond the United States. 

At present, Canada maintains a policy of mandatory retirement at age 75 for all Supreme Court justices (as mandated in the 1927 Act to amend the Supreme Court Act, S.C. 1927, c. 38, s. 2). Currently, one-third of the Supreme Court of Canada is comprised of justices who were appointed by former Prime Minister Stephen Harper, and who will not retire until the 2030s. Although this is undoubtedly better than the United States’ policy of life terms, the flaws in this practice are clear. Crucially, it creates a venue by which a vital governmental body can stagnate even as the rest of the nation progresses and changes, with meaningful impacts on Canadian society. So long as they continue to present “good behaviour,” a justice could serve for decades, with no obligation or incentive to align their views with what is best for contemporary Canadian society.

This issue is compounded by the present system by which justices become part of the Supreme Court. Because they are chosen by appointment (wherein the Prime Minister makes a recommendation to the Governor General for the selection of a Supreme Court justice) rather than by election, Prime Ministers are enabled to choose justices with the highest level of ideological adherence to their personal interests (rather than those who might truly serve the interests of the country at large). 

Shorter term limits are not at all unheard of— in Germany, Federal Constitutional Court justices serve a single, nonrenewable 12-year term, and are elected by majority vote in the federal chambers. In France and Italy, terms are no longer than nine years, and are, again, nonrenewable. These systems have proven effective at overcoming issues of Prime Ministerial bias and unrepresentative judicial decisions, and Canada deserves the chance to reap similar rewards. 

Thus, Canada’s practices of judicial appointment (rather than election) and multi-decade terms represent a fundamental failure to acknowledge the Supreme Court's true role in Canadian society. For a body that governs so many essential aspects of our democracy, we have no reason to settle for anything less than democratic.

References: 

BVerfGG - Gesetz Über Das Bundesverfassungsgericht. 

https://www.gesetze-im-internet.de/bverfgg/BJNR002430951.html. Accessed 09 June 2024. 

Corte Costituzionale -. 

https://cortecostituzionale.it/jsp/consulta/istituzioni/la_struttura_EN.do. Accessed 09 June 2024. 

“Presentation.” Cour de Cassation, https://www.courdecassation.fr/en/la-cour. Accessed 09 June 2024. 

Supreme Court of Canada. Supreme Court of Canada - About the Judges. 1 Jan. 2001, https://www.scc-csc.ca/judges-juges/about-apropos-eng.aspx.