Randall and Venkatesh’s important essay Criminalizing Sexual Violence against Women in Intimate Relationships is a breakthrough in our understanding of human rights, rape, and the institution of marriage, and the intersection of the three. Rape within marriage, the authors argue, strips its victims of multiple human rights, and therefore any state’s refusal to criminalize it is a violation of international law. However, more than half the countries in the world, according to the authors, fail to explicitly criminalize rape or sexual assault within marriage (which I will sometimes call “marital rape” in this comment). In this comment I will first briefly elaborate on the authors’ thesis, emphasizing what it tells us about the meaning, respectively, of “marriage,” “rape,” and “law.” I will then register three objections, or qualifications, to their argument.

International human rights frameworks offer powerful support for a range of reforms to address marital rape. Melanie Randall and Vasanthi Venkatesh’s valuable commentary, Criminalizing Sexual Violence against Women in Intimate Relationships, correctly shines a spotlight on the extent to which marital rape is still accepted in too many countries around the world, and calls for its explicit criminalization under international human rights laws. The commentary serves as an important reminder of the challenges and enduring stereotypes that prevent marital rape from being recognized globally as a human rights violation. But the commentary’s focus on criminalization as the fundamental response is unduly limited. While criminalization, whether explicit or implicit, is a core part of states’ obligations under international human rights law, centering criminal justice risks both shortchanging other approaches and obscuring the problems with criminal justice interventions. Although Randall and Venkatesh acknowledge that criminalization is but one element of a broader strategy, this essay urges a broader view. International human rights laws’ due diligence framework requires a range of responses that include the obligation to prevent, protect, and provide redress, along with the obligation to prosecute and punish. Explicitly framing states’ obligations in terms of that more comprehensive approach would reach broadly to address the cultural and social barriers that allow marital rape to continue without sanction.

There are cases that one never forgets. DPP v. Morgan is one of those for me. I read it as an eighteen-year-old in my first year of law school. It was in the criminal law class where we were being taught about rape. The facts left me shocked and outraged. Morgan went out drinking with his friends. At the end of the night, he invited the friends back to his house. He told them that they could have sex with his wife and added that they should not worry if she appeared to resist, because she liked it that way. The friends duly came over and helped themselves to his wife as per his instructions. Morgan also forced her to have sex with him despite her protestations. She experienced injuries which necessitated medical treatment. His friends were convicted of rape, but he was convicted of indecent assault. This seemed strange. Had they all not forced her to have sex with them despite her clearly expressed refusal? Why was he charged with a lesser crime? The reason was simple: he was her husband. Under the law as it then operated in England, there was no recognition of marital rape. Her consent to lifelong sex on demand, even if it was against her will, was taken as part of the contract of marriage. The words “I do” spoken at the time of the marriage, were taken to mean free access for the husband for as long as they both lived, or until the marriage was legally dissolved or a formal separation was in place.

Prologue: The Context

Sadly, sexual violence against women and girls remains deeply entrenched and politicized around the globe. Perhaps no other allegation of crime exposes a woman’s credibility to such intense hostility and imposes the penalties of shame and stigma to a more severe degree than alleging rape. Factors irrelevant to sexual violence, including the victim’s choice of clothing, hairstyle, and time of the attack frequently serve as points of searching inquiry, and scrutiny. Such extraneous points of critique further compound an atmosphere of shaming and stigmatization associated with sexual violence, but are seen as crucial in bolstering an affirmative defense and inevitably building the case against rape victims.

Nothing can be said in favor of intimate sexual violence, including marital rape, as Randall and Venkatesh, the authors of Intimate Sexual Violence, Human Rights Obligations and the State, make plain. As the New York Court of Appeals held in 1984:

There is something to be said, however, in favor of clearly setting out a legal position before condemning it, in favor of a conservative approach to the wholesale expansion of human rights, and in favor of enabling women, even women in states that do not criminalize marital rape, to set their own priorities. The authors draw on international law to make a passionate case against marital rape, and against domestic laws that fail to recognize it as a crime. Their argument would be more persuasive if their demand for what domestic law must criminalize were clearer, if their international legal analysis were more rigorous and more focused, and if they justified the top-down approach they recommend here, which seems particularly problematic in this context.

It is difficult to engage from a theoretical perspective an advocacy piece that largely reads like a brief in favor of particular claim of law, namely, that a state’s failure to (vigorously) criminalize marital rape violates international human rights law. In a brief, the litigant pulls together various sources to prove the legal claim is correct. Opponents typically respond by cobbling together their own sources to undermine that claim. In their essay, Criminalizing Sexual Violence Against Women in Intimate Relationships, Randall and Venkatesh set out to prove that international human rights law, in fact, requires states to criminalize marital rape. I suspect there are international lawyers who can persuasively argue that international human rights law does not, in fact, require such criminalization.

Ending the marital rape exemption in criminal law is a demand for legal equality and autonomy for women, rights that are enshrined in international human rights law. Drawing on international human rights law as a source of authority for challenging the marital rape exception in criminal law allows feminist and other social justice organizations, within their specific national and local contexts, to seek greater state action and accountability toward ending this form of violence against women and this violation of women’s human rights. In this reply, we challenge the arguments in the symposium that oppose or caution against criminalizing sexual violence in intimate relationships as a necessary legal strategy, and that refute our view that ending the marital rape exemption is required by international human rights law.

In the late 1970s thousands of Indigenous Australians initiated a movement back to the ancestral lands they had been removed from during the assimilationist era. Less than 50 years since their return to country, Aboriginal people living in Western Australia’s (WA) remote communities are again grappling with their impending redispossession. Wa Premier Colin Barnett’s announcement late last year was panic inducing:

International law on the rights of Indigenous peoples has developed rapidly in recent decades. In the latest phase of this development, international instruments on the rights of Indigenous peoples have increasingly offered universalized statements. However, the reality remains that the implementation of Indigenous rights must take place in particular circumstances in particular states. The form of domestic implementation of Indigenous rights may or may not connect closely to international law statements on these rights, and there may be good reasons for that. This essay takes up a particular example of Indigenous land rights and a significant recent development on land rights in the Supreme Court of Canada.

The extractive industry has contributed to the development of international law since colonial times. Contracts between states and extractive companies largely drive this global industry. This essay situates extractive industry contracts involving Indigenous peoples, long term actors who have significantly informed the development of international law, within the context of international law. While these contracts are usually analyzed from domestic perspectives, they are impacted by international norms and, as developing transnational practices, even have the potential to show ways ahead in international law. As regards engagement with Indigenous peoples, contracts, which are typically regarded as private instruments, have significant public ramifications. This is especially the case where states, Indigenous peoples, and transnational corporations (TNCs) are involved and where internationally recognized principles relating to Indigenous rights, notably free, prior, and informed consent (FPIC) are implicated.

This essay, stimulated by themes discussed by Harold Koh and Todd Buchwald, examines the International Criminal Court (ICC) and the amendment to the 1998 Rome Statute to include the crime of aggression within the ICC’s jurisdiction. The definition adopted in Kampala in 2010 is too long to quote in full but merits careful examination. For example, it states that the “‘crime of aggression’ means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.” It then adopts large swaths of UN General Assembly Resolution 3314 (XXIX) of 1974—the definition of aggression—as its own. Commentators recognized problems with the 1974 definition at the time. The post-Kampala Rome Statute purports to achieve objectivity with respect to aggression through removal of everything having to do with context and the totality of the circumstances. These matters surely should be—and must be—of central importance not only to nonparties but also to the parties to the Rome Statute. The fact that they are absent forms the raison d’être of this essay. Because the ICC is a permanent body, able to take jurisdiction of ongoing problems, its actions may have significant implications for world public order.

In this essay, I take up two concerns raised by Harold Koh and Todd Buchwald in their critique of the Kampala amendments on aggression: what they term “proxy prosecution” and the notion of aggression as a uniquely political question. I also take issue with the argument in Alain Pellet’s response on attacks by nonstate actors.

These areas of contention notwithstanding, there are important issues on which I think that Koh and Buchwald get it right. In forthcoming work, I argue that the object and purpose of the criminalization of aggression precludes an interpretation of Article 8bis of the Rome Statute that would include humanitarian interventions not authorized by the Security Council. Nonetheless, the failure to make this textually explicit at Kampala was a mistake that the authors are correct to lament. Similarly, they accurately identify the ambiguities in the provisions on the amendments’ entry into force as an entirely avoidable defect that creates unnecessary confusion. These important points notwithstanding, the article takes some misleading positions on the politics of the crime.

Having embarked in 49 BCE on his long war against Pompey, Julius Caesar reportedly commented “alea iacta est”—events have passed a point of no return. With the adoption and uptake of the Kampala amendment on the crime of aggression the Rubicon has also been crossed with twenty-six states (i.e. merely four less than the required quorum) having ratified the amendment. A significant further number of states have ratified the Rome Statute after the adoption of the Kampala amendment, posing the interesting question whether they ought to be counted towards that quorum.

At the review conference in Kampala, States Parties adopted three new provisions on the crime of aggression for inclusion in the Rome Statute, as well as consequential amendments to the Elements of Crimes. However, states parties did not consider revisions to the procedural arrangements that may be required to accommodate the crime of aggression. The crime of aggression requires a link to states, being limited to acts of aggression by one state against another state. The individuals that can be charged with the crime of aggression are persons “in a position effectively to exercise control over or to direct the political or military action of a State.” The crime is also connected to the international security framework, in particular the UN Charter. Given that aggression is intrinsically linked to state acts, it is “likely that the ICC [International Criminal Court] would need relevant states to cooperate, present evidence, and argue the case.” Yet the existing framework does not include an adequate right of participation for affected states. This contribution suggests one possible revision to provide a clearer legal basis for states to participate directly in ICC proceedings in respect of the crime of aggression.

A pattern of affording impunity to local power brokers throughout Africa pervades the application of international criminal law (ICL) in Africa. The International Criminal Court (ICC) investigation into Uganda is a notorious but representative example, although similar analyses can be made of the Central African Republic, Côte d’Ivoire, the Democratic Republic of Congo, and Libya. In Uganda, only members of the rebel Lord’s Resistance Army (LRA) have been indicted for international crimes, even though the United Nations, international human rights groups, and local NGOs have documented years of abuses perpetrated by government troops and local auxiliary units, often against the same populations victimized by the LRA. The ICC is thereby implicated in the power structures and political arrangements of a repressive state that both combats the LRA and often brutalizes the civilian populations of northern Uganda. Inserting itself into Uganda, the ICC becomes a partisan player in the endgame of a civil war that extends back over a generation, and is itself rooted in ethnic and tribal animosities cultivated through 19th century Euro-colonial benedictions of favor. Here, the ICC and the war it adjudicates become surprising bedfellows, repurposed by local elites for the consolidation of domestic power.

Weak sub-Saharan African states use international law and its institutions to legitimate their actions and delegitimate their internal enemies. In this essay, I argue that during internal armed conflicts, African states use international criminal law to redefine the conflict as international and thereby rebrand domestic political opponents as international criminals/enemies who are a threat to the entire community. This in turn sets the stage for invoking belligerent privileges under international humanitarian law (IHL).