Indictment, Conviction, Imprisonment and Reintegration of ICTY Perpetrators of Sexual Violence. Case Studies from Prijedor, Bosnia and Herzegovina

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Supervisor: Dr. Nanci Adler

Indictment, Conviction, Imprisonment and

Reintegration of ICTY Perpetrators of Sexual Violence

Case Studies from Prijedor, Bosnia and Herzegovina

Janna Bijzen 10610383

jannabijzen@gmail.com

University of Amsterdam, MA Holocaust and Genocide Studies

Master Thesis 2014

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Introduction

All soldiers and civilians know that sexual assault is a crime. Even though sexual violence has been perpetrated during violent conflicts for centuries, it took until 1949 for crimes of sexual violence to be recognised under international humanitarian law. The atrocities committed during World War II against civilians highlighted the need for international legal instruments to prevent these crimes in the future.1_{The Fourth Geneva Convention}

of 1949, which set out the “Protection of Civilian Persons in Time of War” prohibited rape and forced prostitution against women in wartime for the first time.2

However, even though sexual violence was recognised under international law, the first international tribunals after the Second World War failed to include charges of sexual violence in their indictments.3_{Due to this lack of recognition, the terms of rape and}

enforced prostitution were never defined under international law. It took until the establishment of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) in 1993 and 1994 for this to change. The statutes of these ad hoc tribunals recognize sexual violence as rape, and list it as a crime against humanity.4_{Alongside the inclusion of sexual violence in their statutes,}

the tribunals also actively prosecuted sexual violent crimes. It is through this case law that the ICTY made its biggest contributions to the jurisprudence of sexual violence.

At the time of its establishment in 1993, the tribunal proclaimed “sexualised violence against women was one of the foremost concerns in establishing the ICTY”.5_The

unprecedented scale of the sexual violence that was used during the wars of succession in the former Yugoslavia directly motivated the recognition of sexual violence at the ICTY.

1_{Kelly Dawn Askin, War Crimes Against Women: Prosecution in International War Crimes Tribunals (The Hague,}

Martinus Nijhoff, 1997), 244.

2_{“Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War” (12 August} 2_{“Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War” (12 August}

1949), at International Committee of the Red Cross, www.icrc.org/ihl/INTRO/380, Art. 27.

3_{Askin, War Crimes Against Women (1997), 13, 14.}

4_{Statute of the Tribunal (September 2013), at www.icty.org > Legal Library, Art. 5(g); ICTR Statute of the}

Tribunal (January 2010), at www.unictr.org > Legal, Art. 3(g).

5_{Gabriela Mischkowski and Gorana Mlinarević, “…and that it does not happen to anyone anywhere in the world”}

The Trouble with Rape Trials- Views of Witnesses, Prosecutors and Judges on Prosecuting Sexualised Violence during the War in the former Yugoslavia (Medica Moniale e.V., December 2009), 17.

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Even during the war, journalists reported about the magnitude of sexual violent crimes, committed in the prison camps all over the country.6

Sexual Violence during the Wars of Yugoslav Succession

In 1991, after Slovenia and Croatia had declared their independence from Yugoslavia and war had broken out, the Bosnian Serb authorities, led by the Serbian Democratic Party (SDS) began the creation of a separate Serbian territory in Bosnia and

Herzegovina.7_{During the war, that lasted from April 1992 to November 1995, Bosnian}

Serbs led “ethnic cleansing” campaigns against the Muslim Bosniaks.8_{The Bosnian war}

stands out among the other wars of Yugoslav succession as the “epicenter of mass rape”.9

Even though it is difficult to find proof of a top-down directed policy of mass rape, there are indications that during the Bosnian war such an organized policy existed.10

Throughout the Bosnian war all sides of the conflict used sexual violence as a weapon of war against men, women and children. The exact nature of the rapes that occurred during the war is a long-standing subject of debate among scholars. According to the legal expert M. Cherif Bassiouni, sexual violence was taken to “new levels” during the conflict in the former Yugoslavia, because of its “systematic use to force civilians from their homes and ensure they will never return.”11_{Although exact numbers are not}

available, it is estimated that during the conflict in Bosnia and Herzegovina between 20.000 to 50.000 women were raped.12

6_{See for example the report of the journalist Ed Vulliamy after he and other journalists visited the Omarska}

prison camp: Ed Vulliamy, The War is Dead, Long Live the War. Bosnia: the Reckoning (London: Bodley Head, 2012).

7_{Prosecutor v. Miroslav Kvočka, (IT-98-30/1-A), Amended Indictment (26 October 2000), at www.icty.org >}

The Cases (consulted 15 July 2014), para. 2.

8_{Sara Sharratt, Gender, Shame and Sexual Violence: the Voices of Witnesses and Court Members at War Crimes Tribunals}

(Farnham: Ashgate, 2011), 5.

9_{Teresa Iacobelli, “The ‘Sum of Such Actions’: Investigating Mass Rape in Bosnia-Herzegovina through a}

Case Study of Foca”, in Dagmar Herzog (ed.), Brutality and Desire: War and Sexuality in Europe’s Twentieth Century (Bastingstoke: Palgrave Macmillan, 2009), 262.

10_{Ibid. 261.}

11_{M. Cherif Bassiouni, “Sexual Violence: An Invisible Weapon of War in the Former Yugoslavia”, in:}

Occasional Paper No. 1, International Human Rights Law Institute (DePaul University College of Law, 1996): 2; see also Teresa Iacobelli, “The ‘Sum of Such Actions’: Investigating Mass Rape in Bosnia-Herzegovina through a Case Study of Foca”, in: Dagmar Herzog, Brutality and Desire, War and Sexuality in Europe’s Twentieth Century (Bastingstoke: Palgrave Macmillan, 2009), 261, in which she asks the question whether or not the rapes against the Bosnian Muslims and Croats were the result of an “intentional and systemic policy ordered by Bosnian Serbian command” through a case study of the Bosnian city of Foca.

12_{Anne-Marie L.M. de Brouwer, Supranational Criminal Prosecution of Sexual Violence: the ICC and the Practice of the}

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On 6 October 1992 the United Nations (UN) Security Council requested the establishment of a Commission of Experts to investigate the crimes committed on the territory of the former Yugoslavia.13_{The systematic and widespread character of the}

crimes of sexual violence was confirmed by a report on the issue of rape and abuse of women, published on 4 August 1995. In this report the commission described the situation with regard to sexual violence as follows:

It is difficult to assess the actual number of individuals who suffered rape or sexual abuse; victims are often reluctant to report such experiences owing to social stigma and fear of reprisals. Available information indicates that rape has been committed by all sides to the conflict. However, the largest number of reported victims have been Bosnian Muslims, and the largest number of alleged perpetrators have been Bosnian Serbs. There are few reports of rape and sexual assault among members of the same ethnic group.14

The rapes occurred mainly in camps, prisons and brothels but people were also raped publicly in front of friends and relatives. The municipality of Prijedor, located in the northwestern part of Bosnia and Herzegovina, became notorious for the prison camps of Omarska, Keraterm and Prijedor that were erected during the Bosnian war. Most of the sexual violence in Prijedor that was perpetrated by persons who were indicted by the ICTY occurred in these prison camps.

After the Commission of Expert presented the evidence of the atrocities that were committed during this war, the people that were responsible needed to be brought to justice. By prosecuting the perpetrators of these crimes the ICTY wanted to contribute to a situation of lasting peace in the countries of the former Yugoslavia. However, providing justice and incarcerating convicted criminals is not enough to solve the problem of a de-stabilized society, as these prisoners eventually have to return to their country of origin, sometimes sooner than expected. In order to ensure a peaceful society upon their return and a successful reintegration these former perpetrators need to get help and guidance during their prison sentence, so that they are able to reintegrate into society successfully. The ICTY can play an important role in this process.

13_{Mischkowski, “and that it does not happen to anyone anywhere in the world” (2009), 14.}

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Thesis Outline

The aim of this thesis is to provide an overview of the process of the prosecution of perpetrators of sexual violence by the ICTY from indictment, through imprisonment, up to their release and reintegration. The first chapter starts with an introduction on the jurisprudence of sexual violence under international law, and the involvement of the ICTY in the recognition of sexual violent crimes as serious crimes under international law. Through the case law of both the ICTY and the ICTR these tribunals contributed considerably to the jurisprudence of sexual violence, the ICTR was even able to prosecute sexual violence as genocide. The ICTY never prosecuted sexual violence under the count of genocide. The reason behind this and whether the prosecution of sexual violence as genocide should be the “ultimate goal” will be discussed at the end of the first chapter.

From this more general introduction, the second chapter turns to a case study of the prosecution by the ICTY of perpetrators of sexual violence from the municipality of Prijedor. The main issue this chapter addresses is what the provision of the ICTY Statute under which sexual violent crimes are prosecuted adds to the value and recognition of the crime. The only place under which the statute explicitly enlists rape is under Article 5, crimes against humanity. This article is not the most suitable for prosecuting gender crimes in every case, since it can only entail crimes that are committed as part on a “widespread or systematic scale”.15_{The provision that the Tribunal chooses to convict a}

perpetrator for sexual violence has influence in the way the sexual violent crimes come forward in a case. Sometimes the crime becomes more visible, but more often the crimes are buried under other crimes, or the sexual violence is subsumed within other counts. In what way was the sexual violence perpetrated by defendants from Prijedor prosecuted, and in what way did this influence the visibility of the crimes? Other practical issues with regard to the prosecution of sexual violence are also addressed through the course of the second chapter, such as the issue of command responsibility. Some of the camp

commanders from the prison camps in Prijedor did not commit crimes of sexual violence themselves, but they did not do anything to stop their subordinates either. The tribunal needed to find ways to hold these commanders responsible for those crimes.

The third and final chapter of this thesis explores the enforcement of ICTY sentences and the reintegration of the perpetrators into their former societies after their release from the detention facilities in which they were incarcerated. The ICTY uses a

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decentralized prison system, in which the Tribunal relies on other States for the enforcement of their sentences. After their sentences are determined, international prisoners get sent to detention units all over Europe. This system of incarceration gives rise to several issues, which are discussed during the course of the chapter. Domestic prisoners enroll in a rehabilitation program during their time in detention to enable them to successfully reintegrate upon their release. Especially with convicts of serious offends like sexual violence this process is seen as essential to limit the chance of recidivism. These reintegration programs for “ordinary” criminals are not entirely suitable for international prisoners. In what way could this program be adjusted to suit the needs of international prisoners, and what role can the local communities in the former Yugoslavia play in the process of rehabilitation and reintegration. The process after a conviction is just as important as the trial itself.

The international community is struggling to deal with war criminals and international prisoners in the best way possible. The system of incarceration at the ICC uses the same decentralised system as the ad hoc tribunals, in which there is no room for the special needs of war criminals, let alone for war criminals that committed sexual violence. A possible solution could be a permanent international prison facility, funded by the international community. The difficulties and struggles of the ICTR and the ICTY in their roles as pioneers in international law gave rise to a lot of issues with regard to the prosecution, incarceration and reintegration of war criminals. What the experience of these tribunals also showed, was that war criminals are considered to be one single

category. Whereas sexual offenders are considered to be among the most serious criminals among domestic prisoners, with war criminals this distinction does not exist. During their prison sentence these sexual offenders are treated in the same way as the other war criminals. Possible explanations for this difference will be discussed in the third chapter of this thesis.

The ICTY had the opportunity to clarify international law on the subject of sexual violence on important points. In providing an overview of the prosecution of sexual violence this thesis investigates in what ways the ICTY contributed to the jurisprudence of sexual violence, and in what ways they treated the perpetrators of these crimes, during their trials as well as during their sentences and reintegration. For the former Yugoslavia and the ICTY it might be too late to change something, but it is possible to learn from their experience.

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Chapter 1. The Jurisprudence of Sexual Violence under International Law. The Influence

of the International Tribunals

Sexual violence during armed conflict has long been considered as an inevitable

by-product of war. In the past two decades the emergence of international judicial institutions has contributed to the development of international law on the subject of sexual violence. By recognising and prosecuting sexual violent crimes these tribunals represent an

important development in international law. The ICTY as well as the ICTR were the first international tribunals that recognised rape as a crime against humanity. Among their jurisprudential achievements are the acknowledgement of rape and sexual violence as genocide (ICTR), and the recognition that the definition of rape does not need to include a lack of consent from the side of the victim (ICTY).

On their website the ICTY talks with satisfaction about its achievements with regard to the prosecution of sexual violence:

The ICTY took groundbreaking steps to respond to the imperative of prosecuting wartime sexual violence. Together with its sister Tribunal for Rwanda, the

Tribunal was among the first courts of its kind to bring explicit charges of wartime sexual violence, and to define gender crimes such as rape and sexual enslavement under customary law.16

This chapter addresses the development of the recognition of sexual violence under international law and the role of the ICTY in this matter, and is divided into three substantive parts. The first part deals with the history of sexual violence under

international law. What was the status of sexual violence under international law before the foundation of the ad hoc tribunals? The chapter then turns to the prosecution of sexual violence by the ICTY and their role as pioneers in the jurisdiction on this subject by defining rape under international law. The ICTY also adopted several measures to protect victims and witnesses of sexual violence and prosecuted sexual violence under different provisions of their statute. To date, the ICTY has not been able to prosecute sexual violence as genocide but the ICTR did prosecute sexual violence as amounting to genocide. A key question is therefore, why did the ICTY fail on this matter, and in what way would a prosecution of sexual violence under the count of genocide contribute to the

16_{Crimes of Sexual Violence, at www.icty.org> Outreach> Crimes of Sexual Violence (accessed 1 October}

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case law of the tribunal? Even though considerable progress has been made in the prosecution of sexual violence under international law, much remains to be done. Accordingly, the current status of rape and gender crimes at the International criminal Court (ICC) is addressed in part three of this chapter. Without the contributions from the ICTY and the ICTR, the Rome Statute of the ICC would look very different, but what exactly did these tribunals add to this statute on the subject of sexual violence?

The ICTY contributed to the jurisprudence of sexual violence mainly through their case law. By addressing sexual violence in their cases and adding charges of rape and other forms of sexual assault to their indictments, they opened up the discussion on this delicate subject. But were they successful in addressing these crimes? And what were their biggest achievements? If we look at the ICC, what more can be done on this subject?

1.1 Sexual Violence under International Law

During armed conflict sexual violence has always been used both opportunistically and strategically. Traditionally, women were considered “legitimate spoils” of war and rape an “inevitable by-product” of war.17_{Over the past decades this image began to change, in}

part thanks to the developments in international law and for the first time sexual violence was prosecuted as a serious crime at international tribunals.

After World War II, the first international war crimes tribunals were established: the International Military Tribunal (IMT) at Nuremburg, to try the Nazi leadership; and the International Military Tribunal for the Far East (IMTFE) in Tokyo, to prosecute the senior Japanese officers.18_{Both tribunals failed to include sexual violence as one of the}

crimes under their jurisdiction. At the IMT sexual violence did come forward in the evidence of the atrocities that were presented at trial, but they were not explicitly addressed.19_{When the allied victors of the war signed Control Council Law No. 10 in}

December 1945, a document from which the trials for the lower-level war criminals drew authority, they did include sexual violence. Rape was included as a crime against

17_{Kelly Askin, “Treatment of Sexual Violence in Armed Conflicts: A Historical Perspective and the Way}

Forward”, in Anne-Marie de Brouwer et al., Sexual Violence as an International Crime: Interdisciplinary Approaches (Cambridge: Intersentia, 2013), 19.

18_{Ibid. 19, 20.} 19_{Ibid. 32.}

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humanity but was not defined in its own right.20_{Even though rape was recognised as a}

serious crime, during the trials of the lower-level accused gender crimes were not actively prosecuted.

At the Tokyo trials of the IMTFE rape was charged against some of the accused as “inhumane treatment”, “ill-treatment” and “failure to respect family honour”. So in this case the tribunal failed to include sexual violence in their charter, but they did prosecute some crimes of rape and sexual violence.

These examples show that the inclusion of a crime in a statute does not ensure prosecution of the crime. But it also shows that if sexual violence crimes are not explicitly listed in a statute, a tribunal can still find ways to charge people for sexual violence under other provisions of their statute.

The United Nations Security Council established the International Criminal Tribunals for the former Yugoslavia (ICTY) and for Rwanda (ICTR) in 1993 and 1994, respectively. Both tribunals included rape in their statute, and in their cases the ICTY and ICTR have successfully prosecuted rape and sexual violence as various crimes under international law.

In 1998 the permanent International Criminal Court (ICC) was founded. It drew heavily on the jurisprudence created by the two ad hoc tribunals of the 1990s, and listed various gender crimes in the Rome Statute, which came into force on 1 July 2002.

The enlistment of various gender crimes in the statute of the ICC is a great

achievement, but it is not enough. The prosecution of sexual violence remains a challenge to this day. The inclusion of sex crime investigations in investigative missions, as well as the inclusion of charges of sexual violence in indictments, both remain things that need constant attention. As the political scientist Sabrina Ramet explains: “the problem lies not in the law but in the failure to enforce its prohibitions.”21

20_{The Avalon Project, Documents in Law, History and Diplomacy, “Nuremberg Trials Final Report Appendix}

D: Control Council Law No. 10”, at http://avalon.law.yale.edu/imt/imt10.asp (accessed 1 October 2014), Art. 2(1)(c).

21_{Sabrina P. Ramet (ed.), Gender Politics in the Western Balkans: Women and Society in Yugoslavia and the Yugoslav}

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1.2 The Prosecution of Sexual Violence by the ICTY

The atrocities that were committed during the war in the former Yugoslavia created an opportunity for the international community to enforce the existing international law, and to end the impunity with regard to sexual violence.

In their statute the ICTY included rape as a crime against humanity, but once the cases developed, the tribunal recognised the difficulties in applying international human rights and humanitarian law to rape.22_{During their}

proceedings the Trial Chamber and Appeals Chamber of the tribunal added to the jurisprudence of sexual violence in several ways, by recognising various forms of sexual violence in their judgements and prosecuting them under different

provisions of their statute. It shows that the jurisprudence of sexual violence is a work in progress, which is never finished.

1.2.1 Defining Sexual Violence

Before they could start with the prosecution of rape the ICTR and ICTY had to come up with a legal definition of the term of rape. Since the term “rape” or “sexual violence” were never defined under international law, the judges of the international tribunals had to establish a definition over the course of the proceedings. This resulted in three principal definitions of rape, established in different cases at the ICTY and the ICTR. The first definition was established in the case of Prosecutor v. Jean-Paul Akayesu at the ICTR in the context of rape as a crime against humanity:

The Chamber defines rape as a physical invasion of a sexual nature, committed on a person under circumstances which are coercive. Sexual violence which includes rape, is considered to be any act of a sexual nature which is committed on a person under circumstances which are coercive. This act must be committed:

a) as part of a wide spread or systematic attack; b) on a civilian population

c) on curtained catalogued discriminatory grounds, namely: national, ethnic, political, racial, or religious grounds.23

22_{Ramet, Gender Politics in the Western Balkans (1999), 203.}

23_{Prosecutor v. Jean-Paul Akayesu, (ICTR-96-4), Trial Judgement (2 September 1998), at www.unictr.org >}

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This definition was very broad and conceptual. It did not include any details with regard to the act of rape, but remained very vague.

When the ICTY started prosecuting sexual violence they adopted this ICTR definition with some small changes in the Čelebići case. The Trial Chamber defined rape as: “a physical invasion of a sexual nature, committed on a person under circumstances which are coercive”.24_{Again there was no mention of any details such as body parts. The}

act was described from the perspective of the victim as a “physical invasion”. Three weeks after the Čelebići judgement the second principal definition was established by the ICTY in the Furundžija case. For this definition the Trial Chamber examined the national legislation of different states in order to come to a common perception of the elements of the crime.25_{Since the charges against Anto Furundžija}

included forced oral sex the original definition of rape needed to be broadened. Even though there was a major discrepancy between the national legislations on the subject of oral penetration and whether it constituted rape or not, according to the Trial Chamber of the ICTY oral sex should be considered rape and not sexual assault, since “forced oral sex can be just as humiliating and traumatic for a victim as vaginal or anal penetration”.26

This second definition of rape was more detailed in describing the act itself. It stated that rape was:

(i) the sexual penetration, however slight:

a. of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator, or

b. of the mouth of the victim by the penis of the perpetrator (ii) by coercion or force or threat of force against the victim or a third

person.27

The Trial Chamber stressed that international criminal law covers any serious sexual assault, even when it does not involve actual penetration, and that the distinction between these crimes was made for the purpose of sentencing.28

Even though the ICC later used the Furundžija definition for the first part of their definition of rape,29_{this definition was not upheld in other cases at the ICTY. Instead, the}

24_{Prosecutor v. Zdravko Mucić, Hazim Delić, Esad Landžo and Zejnil Delalić (IT-96-21), Trial Judgement (16}

November 1998), at www.icty.org > The Cases (accessed 1 October 2014), para. 479.

25_{Prosecutor v. Anto Furundžija, (IT-95-17/1), Trial Judgement (10 December 1998), at www.icty.org > The}

Cases (accessed 1 October 2014), para. 179.

26_{Ibid. para. 184.} 27_{Ibid. para. 185.} 28_{Ibid. para. 186.}

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Tribunal used the third definition of rape, established in the Foča case against Dragoljub Kunarac, Radomir Kovač and Zoran Vuković. Against these accused the Trial Chamber could not use the Furundžija definition because the definition was too narrowly stated on the subject of coercion; “the Furundžija definition does not refer to other factors which would render an act of sexual penetration non-consensual or non-voluntary on the part of the victim”.30_{Again the Trial Chamber drew upon several national legislations to find three}

categories with regard to the element of coercion:

i) the sexual activity is accompanied by force or threat of force to the victim or a third party;

ii) the sexual activity is accompanied by force or a variety of other specified circumstances which made the victim particularly vulnerable or negated her ability to make an informed refusal; or

iii) the sexual activity occurs without the consent of the victim.31

The Trial Chamber came to the conclusion that the terms coercion, force, or threat of force should not be interpreted narrowly and therefore drew a new definition of rape:

In light of the above considerations, the Trial Chamber understands that the actus reus of the crime of rape in international law is constituted by: the sexual penetration, however slight: a) of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; or b) of the mouth of the victim by the penis of the perpetrator; where such sexual penetration occurs without the consent of the victim. Consent for this purpose must be consent given voluntarily, as a result of the victim’s free will, assessed in the context of the surrounding circumstances. The mens rea is the intention to effect this sexual penetration, and the knowledge that it occurs without the consent of the victim.32

The Trial Chamber upheld the first part of the Furundžija definition, but the “force-element” was reduced to being evidence of the lack of consent of the victim instead of an element of the crime itself.

The Appeals Chamber in the same case finally settled the definition of the crime of rape under international law. The Appellants proposed a definition of rape that required, in addition to penetration, a “showing of two additional elements: force or threat of force

29_{Elements of Crimes, (ICC-ASP/1/3(part II-B), 2011), at www.icc-cpi.int > Legal Texts and Tools (accessed 1}

October 2014), Art. 7(1)(g)-1.

30_{Prosecutor v. Dragoljub Kunarac, Radomir Kovač and Zoran Vuković, (IT-96-23 and 23/1), Trial Judgement (22}

February 2001), at www.icty.org > The Cases (accessed 1 October 2014), para. 438.

31_{Ibid. para. 442.} 32_{Ibid. para. 460.}

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and the victim’s ‘continuous’ or ‘genuine’ resistance”.33_{The Appeals Chamber did not}

accept this definition and concurred with the Trial Chamber’s definition of rape. They rejected the “resistance” requirement, and also added to the discussion on the issue of consent. The Appeals Chamber explained that genuine consent to the instant sexual acts in this particular case was impossible due to the circumstances. The women that were raped were held in military headquarters, detention centers and apartments maintained as soldiers’ residence. The circumstances that were created by these detentions were so coercive that it made the issue of consent irrelevant.34

These discussions in which the Trial Chamber and Appeals Chamber tried to define rape under international law were fruitful in several ways. They added to the debate on how to define sexual violence in a universal way and brought to light several interesting subjects, such as whether oral penetration should be considered rape, and whether rape needs a lack of consent from the victim. The definitions that were created by the ICTY and the ICTR are not internationally accepted and are only used by the

tribunals themselves.35_{The Furundžija definition was used by the ICC in their definition of}

rape, and the discussions on the definition from the ICTY and ICTR judgements can be used by every future tribunal. The fact that there is not one universal definition of rape is a good thing in the sense that it does add to interesting discussions at ad hoc tribunals. It forces Trial Chambers to think about what constitutes rape or sexual violence in their terms, and makes it possible to adjust the definition to a particular conflict.

1.2.2 Measures with regard to the Victims of Sexual Violence

As the discussions on the definition of rape show, the ICTY paid a lot of attention to the issue of “consent”. This has to do with the recognition of the rights of the victims of sexual violence, who often require a special treatment because of the special and intimate nature of the crime. The ICTY has taken on several measures to enable victims of sexual

violence to participate in the legal process.

A method employed by the ICTY to encourage victims to come forward was by involving a large number of women in the functioning of the tribunal. Patricia Viseur-Sellers, who was appointed as Gender Issues Legal Officer for the Yugoslav and Rwandan Tribunals, has been very important in showing the prosecution, media and the public the

33_{Prosecutor v. Dragoljub Kunarac, Radomir Kovač and Zoran Vuković, (IT-96-23 and 23/1), Appeals Chamber}

Judgement (12 June 2002), at www.icty.org > The Cases (accessed 1 October 2014), para. 125.

34_{Ibid. para. 132.}

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importance of the prosecution of gender crimes.36_{The appointment of women in}

important positions at the tribunal as investigators, researchers, judges, legal advisors, and prosecutors can be helpful to properly investigate sexual violence as well.37_{Of the total}

number of 52 permanent judges who were appointed by the ICTY over the years, only eleven were women.38_{This is far from an ideal situation, but it is a step in the right}

direction. As the international legal officer Kathrin Gabriel points out, “neither female judges nor high-level female prosecutors were involved in the Nuremberg or Tokyo Trials.”39_{To ensure a better balance with regard to the gender of the membership of the}

court, the ICC provided pertinent provisions for fair gender representation in their statute.40

Another way in which the tribunal tried to ensure successful prosecution of gender crimes was by incorporating gender issues into the Rules of Procedure and Evidence. For victims of sexual violence it is very stressful and traumatic to testify in court. Their

credibility is constantly questioned, which can be very hurtful, since it is already very difficult for them to talk about these intimate crimes.41_{A way in which the ICTY tried to}

enhance the position of the rape victim in court was by introducing Rule 96, one of the most progressive rules in the history of gender jurisprudence.42_{With the inclusion of this}

rule in the tribunal’s Rules of Procedure and Evidence in 1994, the ICTY made an effort to protect the victims and witnesses at the Tribunal. Rule 96 states that in cases of sexual assault:

i. No corroboration of the victim’s testimony shall be required ii. Consent shall not be allowed as a defence if the victim

a. has been subjected to or threatened with or has had reason to fear violence, duress, detention or psychological oppression, or

36_{Second Annual Report (UN Doc A/50/365, S/1995/728) (23 August 1995), at www.icty.org > About the}

ICTY > Reports and Publications (accessed 1 October 2014), para. 44.

37_{Askin, War Crimes Against Women (1997), 302.}

38_{See Former Permanent Judges, at www.icty.org > About the ICTY > Chambers> Former Judges (accessed 1}

October 2014); and Current Permanent Judges, at www.icty.org > About the ICTY > Chambers > The Judges (accessed 1 October 2014).

39_{Kathrin Anastasia Gabriel, “Engendering the International Criminal Court: Crimes Based on Gender}

and Sexual Violence”, in: Eyes on the ICC 1 (2004): 44.

40_{Gabriel, “Engendering the International Criminal Court” (2004), 44; and ICTR Statute of the Tribunal}

(January 2010), at www.unictr.org > Legal (accessed 1 October 2014), Art. 36, para. 8(a)(iii).

41_{Sara Sharratt, “Voices of Court Members: A Phenomenological Journey- The Prosecution of Rape and}

Sexual Violence at the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the Bosnian War Crimes Court (BIH)” in Anne-Marie de Brouwer et al., Sexual Violence as an International Crime:

Interdisciplinary Approaches (Cambridge: Intersentia, 2013), 361.

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b. reasonably believed that if the victim did not submit, another might be so subjected, threatened, or put in fear.

iii. Before evidence of the victim’s consent is admitted, the accused shall satisfy the Trial Chamber in camera that the evidence is relevant and credible; iv. Prior sexual conduct of the victim shall not be admitted in evidence.43

Paragraph two of the rule states that consent shall not be allowed as a defence if the victim has been threatened. The importance of this part of the rule became clear in the Foča case. Dragoljub Kunarac, who was charged with rape of the victim “D.B.”, stated in his

defence that his acts did not constitute rape since he did not force the woman to have sexual intercourse with him. According to him, D.B. even took the initiative for the sexual intercourse: “I had sex against my will… without having a desire for sex”. And he

continued: “I cannot say that I was raped. She did not use any kind of force but she did everything”.44_{This particular girl was captured from her hometown and taken to different}

houses by Kunarac and other men, where she was repeatedly raped.45_{Under such}

circumstances, the Trial Chamber ruled that it was not important whether or not the victim consented to the sexual acts. She was not in a position to give any real consent, so therefore it should not be taken into account in court. For victims of sexual violence it is especially difficult and humiliating to testify in court. In this example it was probably even more humiliating for the victim to hear that she “forced” Kunarac to have sexual

intercourse. According to Vesna Nikolić-Ristanović, a Serbian expert on war victimization and violence against women, perpetrators often portray themselves as victims, like Kunarac did, in order to evoke sympathy for their situation.46_{They try to}

blur the boundaries between perpetrators and victims and portray themselves as unwilling executioners.47

Another important contribution of Rule 96 is that “no corroboration of the victim’s testimony shall be required”.48_{Under normal circumstances, a testimony would}

require a witness to confirm the testimony. But since sexual violent crimes usually occur without witnesses present, or only with witnesses on the side of the perpetrator, it is often

43_{Rules of Procedure and Evidence (Rev. 49, 22 May 2013), at http://www.icty.org > Legal Library (accessed 1}

October 2014), Rule 96.

45_{Ibid., 83.}

46_{Vesna Nikolić-Ristanović in Hugo van der Merwe, Victoria Bexter and Audrey R. Chapman (ed.),}

Assessing het Impact of Transitional Justice: Challenges for Empirical Research (Washington D.C.: United States Institute for Peace Press, 2009), 237.

47_{Ibid. 237.}

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not possible to provide corroboration. The special nature of the crime of sexual violence calls for an exception in this regard. This addition of the rule makes it more realistic for testimonies regarding sexual violence to be admitted. An example in which this part of the rule was used is from the Čelebići case, in which the Defence of the accused Hazim Delić tried to discredit the victims by saying the testimonies they gave “lacked credibility”. The Trial Chamber dismissed this claim by referring to Rule 96:

The Trial Chamber notes that sub-Rule 96(i) of the Rules provides that no corroboration of the testimony of a victim of sexual assault shall be required. It is alleged in the Indictment that Ms. Ćećez was raped by Hazim Delić and by other persons. The Trial Chamber finds the testimony of Ms. Ćećez, and the supporting testimony of Witness D and Dr. Grubač, credible and compelling, and thus

concludes that Ms. Ćećez was raped by Mr. Delić, and others, in the Čelebići prison-camp.49

Before the introduction of Rule 96 it would have been less likely that the testimony of the victim would be accepted as the sole evidence as rape survivors are usually in a no-win position in court. Legal officers such as the Defence in the Čelebići case try to use whatever the witness says as a reason for doubting and shaming him or her.50

In addition to Rule 96, Rules 69 and 75 were designed with gender specific purposes. Rule 69 allows for the “possible non-disclosure of the identity of the victim or witness in exceptional circumstances”, and Rule 75 allows for “in camera proceedings” in certain circumstances.51_{With the introduction of these rules the ICTY added to the}

credibility of rape victims and encouraged them to testify in court.

1.2.3 Recognition of Various Forms of Sexual Violence

Even though rape was only recognised as a crime against humanity in the statute of the ICTY, they acknowledged, in several cases, that crimes of sexual violence can satisfy the elements of a variety of serious international crimes that were not originally interpreted to include sexual violence.52_{Over the course of the proceedings the ICTY also}

acknowledged a variety of forms of sexual violence besides rape, and recognised that

49_{Prosecutor v. Zdravko Mucić, Hazim Delić, Esad Landžo and Zejnil Delalić (IT-96-21), Trial Judgement (16}

November 1998), at www.icty.org > The Cases (accessed 1 October 2014), para. 936.

50_{Sara Sharratt, “Voices of Court Members”, in De Brouwer et al. (2013), 362.}

October 2014), Rule 69, 75.

52_{Michelle Jarvis and Elena Martin Salgado, “Future Challenges to Prosecuting Sexual Violence Under}

International Law: Insights from ICTY Practice”, in Anne-Marie de Brouwer et al., Sexual Violence as an International Crime: Interdisciplinary Approaches (Cambridge: Intersentia, 2013), 104.

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sexual violence was not just perpetrated against women and girls, but against all civilians, including men and boys during the wars of Yugoslav succession in the early 1990s.

In order for sexual violence to be prosecuted by the tribunal, the crime must be recognised as a crime within the jurisdiction of the ICTY which includes crimes of genocide, crimes against humanity, or war crimes.53_{At the tribunal rape has been}

successfully prosecuted in terms of war crimes and crimes against humanity, as rape, torture, enslavement and persecution, as well as grave breaches of the Geneva Conventions.54

Vesna Nikolić-Ristanović points out that when rape is charged as a crime against humanity it can only be prosecuted when it occurred as part of a systematic and

widespread attack, since that is one of the conditions for a crime against humanity. Rape, she says, is therefore not considered a crime against an individual, but a crime against an ethnic community.55_{This attention to the strategic function of rape has failed to reflect}

the individual suffering of victims, and the other functions that wartime rape can have.56

All forms of sexual violence must be prosecuted, whether it is perpetrated against an individual or against an entire group. It is always a serious crime and should be

considered as such under international law. Not only the systematic persecution of sexual violence should be punished, but every instance in itself.

Since it often turned out to be difficult to prove the systematic nature of the crime, rape was also prosecuted by the ICTY as a grave breache of the Geneva Conventions. Grave breaches constitute the most serious war crimes, and even though rape is not explicitly considered a grave breach under the Geneva Conventions, it can be prosecuted as one of the other grave breaches.57_{The ICTY prosecuted rape as the grave breaches}

“torture or inhuman treatment”, and “wilfully causing great suffering or serious injury to body or health” (grave breaches b and c). By prosecuting rape as grave breaches of the

53_{De Brouwer, Supranational Criminal Prosecution of Sexual Violence (2005), 39.}

54_{De Brouwer et al., “Interdisciplinary Approaches to Recognizing, Investigating and Prosecuting Sexual}

Violence as an International Crime”, in Anne-Marie de Brouwer et al., Sexual Violence as an International Crime: Interdisciplinary Approaches (Cambridge: Intersentia, 2013), 6.

55_{Vesna Nikolić-Ristanović (ed.), Women, Violence and War: Wartime Victimization of Refugees in the Balkans}

(Budapest: Central European University Press, 2000), 79.

56_{Ramet, Gender Politics in the Western Balkans (1999), 207.}

57_{The grave breaches are: a) wilful killing; b) torture or inhuman treatment, including biological}

experiments; c) wilfully causing great suffering or serious injury to body or health; d) extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly; e) compelling a prisoner of war or a civilian to serve in the force of a hostile power; f) wilfully depriving a prisoner of war or a civilian of the rights of fair and regular trial; g) unlawful deportation or transfer or unlawful confinement of a civilian; h) taking civilians as hostages. Statute of the Tribunal (September 2013), at http://www.icty.org > Legal Library (accessed 1 October 2014), Art. 2.

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Geneva Conventions this crime gets the highest recognition under international law, as a crime against an individual.

Even though the ICTY prosecuted sexual violence as a crime against humanity, grave breaches of the Geneva Conventions and violations of the laws or customs of war, it never prosecuted sexual violence as genocide. Sexual violence convicted as genocide has been one of the most discussed aspects in sexual violence prosecutions.58_{Whether or not}

the prosecution of sexual violence as genocide is the “highest achievable goal” will be discussed in the next paragraph.

Alongside the prosecution of sexual violence under different provisions of its statute, the ICTY also acknowledged that sexual violence could constitute a number of different crimes, not just the crime of rape. During the Foča trial, for example, sexual enslavement was included as a crime against humanity. It was the first conviction under international law of enslavement on the basis of violent sexual crimes. The army officers in this case were prosecuted for their role in the organisation of the rape camps in the area of Foča, Bosnia and Herzegovina. Over twenty women testified before the Tribunal about their experience with rape, gang rape, and other sexual violent crimes in this area. The women were held at apartments and hotels that were run as brothels for Serb soldiers. The Trial Chamber recognised that the definition of the crime of enslavement needed to be widened to include sexual enslavement, instead of only forced labour and servitude.59

Another ground-breaking achievement by the ICTY was that they prosecuted sexual violence perpetrated against men for the first time under international law.

According to the legal expert Sandesh Sivakumaran sexual violence against men and boys has taken place in at least 25 conflicts in the last three decades alone.60_{The types of sexual}

violence against men that are prevalent during armed conflict are rape, enforced sterilization, beatings to the genitals, enforced nudity and enforced masturbation.61_The

shame for men who have been sexually abused often makes it difficult to address the issue, as well as the fact that men are often killed after sexual crimes are perpetrated against them. The ICTY has prosecuted sexual violence against men in several cases. The most well-known case is the one against Duško Tadić, in which Tadić was charged with forcing

58_{Jarvis and Salgado, “Future Challenges to Prosecuting Sexual Violence Under International Law”, in De}

Brouwer et al. (2013), 118.

60_{Sandesh Sivakumaran, “Prosecuting Sexual Violence against Men and Boys”, in Anne-Marie de Brouwer}

et al., Sexual Violence as an International Crime: Interdisciplinary Approaches (Cambridge: Intersentia, 2013), 80.

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prisoners to commit oral sexual acts on each other and to sexually mutilate another prisoner.62_{Other cases that involved charges of sexual violence against men were the ones} against Stevan Todorović, Milomir Stakić and Ranko Češić.63_{Besides these cases at the}

ICTY there have been very few prosecutions for the crime of male rape. This is often because there is a lack of documented evidence on the subject, and because the Prosecutor fails to charge offences within this category. This was the case at the Special Court for Sierra Leone (SCSL). The SCSL did not prosecute any instances of male sexual violence, even though there was mention of such crimes in the evidence.64_{The Rome Statute of the}

ICC shows that some progress on this issue has been made. They framed their description of sexual violence crimes in gender-neutral terms, with which the ICC acknowledges that each of the crimes is capable of being committed against men and boys as well as women, aside from the crime of forced pregnancy.65

1.2.4 Sexual Violence as Genocide: The Ultimate Goal?

To date no person has been convicted by the ICTY of genocide based on acts of sexual violence. Whether sexual violence can constitute genocide is by far the most discussed aspect of the development of the jurisdiction of sexual violence over the past twenty years. Many people still consider sexual violence as incidental crimes, and therefore do not see them as being a form of genocide.66_{The UN accepted definition of genocide does not}

only include killing, but covers other violent acts as well, provided they are carried out with genocidal intent.67_{For a crime to be considered genocide in the terms of the UN}

Convention, the intent must be “to destroy, in whole or in part, a national, ethnical, racial or religious group”.68_{If this necessary intent can be proven, there is no reason why sexual}

violence should not be considered as part of the crime of genocide.

62_{Prosecutor v. Duško Tadić, (IT-94-1), Second Amended Indictment (14 December 1995), at www.icty.org>}

The Cases (accessed 1 October 2014), para. 6.

63_{Prosecutor v. Stevan Todorović, (IT-95/9/1), Trial Judgement (31 July 2001), at www.icty.org > The Cases}

(accessed 1 October 2014), paras. 36-40; Prosecutor v. Milomir Stakić, (IT-97-24), Trial Judgement (31 July 2003), at www.icty.org> The Cases (accessed 1 October 2014), para. 241 and Prosecutor v. Ranko Češić, (IT-95-10/1), Trial Judgement (11 March 2004), at www.icty.org > The Cases (accessed 1 October 2014), paras. 13-14.

64_{Sivakumaran, “Prosecuting Sexual Violence against Men and Boys”, in De Brouwer et al. (2013), 88.} 65_{Ibid. 84.}

67_{Statute of the Tribunal (September 2013), at http://www.icty.org > Legal Library (accessed 1 October 2014),}

Art. 4(b)-(e).

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In the Akayesu case at the ICTR the Trial Chamber convicted Akayesu of genocide based in part upon acts of sexual violence.69_{Originally there were no charges or evidence}

of rape in the indictment of the Akayesu case. The only female judge sitting on the ICTR Trial Chamber, Judge Nevanethem Pillay, made sure that the indictment was amended to include charges of rape and sexual violence.70_{In their judgement the Trial Chamber}

ruled: “sexual violence was an integral part of the process of destruction, specifically targeting Tutsi women and specifically contributing to their destruction and to the destruction of the Tutsi group as a whole.”71_{The Akayesu judgment was the first}

international conviction for genocide and the first judgment to recognize rape and sexual violence as constitutive acts of this crime.

Genocide cases at the ICTY have proven to be more complicated than those at the ICTR.72_{Only the events that occurred in Srebrenica in July 1995 have successfully}

been prosecuted as genocide, so there are fewer convictions for genocide at the ICTY in general. Proving that acts of sexual violence were carried out with genocidal intent may require linking the sexual violence crimes with a broader campaign.73_{An example of a}

case at the ICTY where such a link was successfully established was the case against Radislav Krstić, the Chief of Staff of the Drina Corps of the Bosnian Serb Army (VRS). Krstić led the operation in Srebrenica in July 1995, which resulted in the execution of over seven thousands Bosnian Muslim men and boys. The soldiers perpetrated many acts of rape against the women of the town of Potocari that had fled to a UN military

compound nearby. Sexual violence was seen as part of the ethnic cleansing campaign of which Krstić was held responsible, but the sexual violent crimes were not part of his conviction of aiding and abetting genocide. It was stated in the judgement as follows:

In sum, the Trial Chamber finds General Krstić guilty as a member of a joint criminal enterprise whose objective was to forcibly transfer the Bosnian Muslim women, children and elderly from Potocari on 12 and 13 July […]. General Krstić

Completed Cases (accessed 1 October 2014), para. 731.

70_{Asser Institute, Center for International and European Law, “Sexual Crimes Under International Law”,}

at http://www.asser.nl/Default.aspx?site_id=9&level1=13336&level2=13375&level3=13477 (accessed 1 October 2014).

Completed Cases (accessed 1 October 2014), para. 731.

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thus incurs liability also for the incidental murders, rapes, beatings and abuses committed in the execution of this criminal enterprise at Potocari.74

In this case the Prosecution failed to include sexual violence and rape in the genocide charge. For this reason the sexual violence committed in Potocari was not prosecuted as genocide.

One of the main questions that needs to be asked is what the advantage of

prosecuting rape as genocide is. Genocide is one of the hardest crimes to prove, and rape as a part of an ethnic cleansing campaign is far more difficult to prove than rape outside this strategy. If rape is seen as a crime against an individual there is more focus on the suffering of the individual victims and there is a higher chance of the perpetrators actually being convicted for their crimes. This being said, the crime of genocide does have the highest international recognition and for sexual violence to be considered as such does add significance to the crime.

The risk is that by focusing too much on prosecuting sexual violence under the most serious provisions of the statute, the individual suffering of the victim is ignored. The political scientist Sabrina Ramet explains that by focusing too much on the significance of “mass rape”, and “rape as genocide”, the experience of the individual victim and the various functions of wartime rape are being overlooked.75_{According to Ramet it should}

not matter whether or not rape was perpetrated as part of an overarching policy, because even individual rapes should be considered to be the most grave crimes under

international law.76_{The Serbian sociologist Vesna Nikolić-Ristanović agrees with Ramet}

that when too much attention is paid to rape as part of a widespread policy, or as a part of ethnic cleansing, the interest of the individual victim is lost: “This makes it clear that women’s interests are not what count in the first place. Again, rape is understood as a crime against a particular ethnic community, against women as a form of male

property”.77_{In the prosecution of sexual violence it is important to find the right balance.}

Enough attention should be paid to the suffering of the victims, and the crime of sexual violence must be recognized as a grave crime under international law.

74_{Prosecutor v. Radislav Krstić, (IT-98-33), Trial Judgement (2 August 2001), at www.icty.org > The Cases}

(accessed 1 October 2014), para. 617.

75_{Ramet, Gender Politics in the Western Balkans (1999), 207.} 76_{Ibid. 207.}

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1.3 Sexual Violence at the International Criminal Court

The Rome Statute of the ICC demonstrates that the achievements of the ICTY and the ICTR with regard to the prosecution of gender crimes have been generally accepted by the international community. The Statute enumerates various types of sexual violence and all the descriptions of the crimes are stated in gender-neutral terms. It also mandates the inclusion of women in different organs of the court and gives the court jurisdiction over rape and sexual violence under several provisions.

Luis Moreno-Ocampo, Chief Prosecutor of the ICC from June 2003 until June 2012, explains the importance of prosecuting gender crimes at the ICC:

Gender crimes are prominent in our prosecutions because they are prominent in the contexts being prosecuted. This only becomes remarkable against the

backdrop of the prior and still prevalent norm of denying their existence, ignoring them, shaming their victims, and or defining them in legally improvable ways.78

The Rome Statute of the ICC recognizes gender crimes and sexual violence explicitly as crimes against humanity, war crimes and grave breaches of the Geneva Conventions.79

The fact that sexual violence is incorporated as a war crime is significant, since it makes it easier to prosecute the crime. At the ICTY and the ICTR, where rape was only

recognized as a crime against humanity, the Tribunal needed to prove that the crime was perpetrated in a “systematic or widespread fashion”. War crimes do not require the proof of being perpetrated in a systematic fashion, and are therefore easier to prove during prosecution.

Further to the enlistment of sexual violence under different provisions, the ICC also recognized the distinct characteristics of different crimes of sexual violence by separately identifying them in their statute. Where the ICTY only included “rape” as a crime against humanity, the ICC included rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or “any other form of sexual violence of comparable gravity” as a crime against humanity.80_{The same crimes are listed under}

78_{Luis Moreno-Ocampo, “The Place of Sexual Violence in the Strategy of the ICC Prosecutor”, in}

Anne-Marie de Brouwer et al., Sexual Violence as an International Crime: Interdisciplinary Approaches (Cambridge: Intersentia, 2013), 155-156.

79_{The Rome Statute, (A/CONF.183/9, 2011), at www.icc-cpi.int > Legal Texts and Tools (accessed 1}

October 2014), Art. 7(1)(g).

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Article 8 of the Rome Statute as war crimes.81_{The fact that the ICTY recognized}

enforced prostitution as an international crime in the Kunarac case definitely contributed to the inclusion of this crime in the Rome Statute. Even though sexual slavery, forced pregnancy and enforced sterilization had not been recognised as an international crime before the establishment of the ICC, the reports of rape and sexual violence used as instruments of ethnic cleansing from Bosnia and Herzegovina have contributed to the recognition of these crimes as well.82

The ICC also continued with the establishment of procedures to ensure that the crimes of sexual violence and their victims were treated in a respectful way. In their statute the court explicitly outlines the victims’ and witnesses’ protection in Article 68:

The Court shall take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses. In so doing, the Court shall have regard to all relevant factors, including age, gender as defined in article 7, paragraph 3, and health, and the nature of the crime, in particular, but not limited to, where the crime involved sexual or gender violence or violence against children.83

By explicitly referring to sexual or gender violence the ICC shows one again how progressive they are with regard to crimes of sexual violence. Had it not been for the ad hoc Tribunals they probably would not have been where they are today. The ICC even used the first part of the Furundžija definition of rape for their own definition of the crime of rape in the Elements of Crime.84_{Hopefully the ICC will continue the struggle of}

identifying and prosecuting crimes of sexual violence to the best of their ability. Unfortunately during the cases at the ICC it once again became clear that the inclusion of a crime in a statute, does not ensure the inclusion of the charges for this crime in the indictments. Nor does it guarantee prosecution when the charges are included. In theory the ICC has done more than any other international tribunal to date to promote the recognition of sexual violence under international law. They struggle, however, with

81_{Ibid. Art. 8(xii).}

82_{Gabriel, “Engendering the International Criminal Court” (2004): 49.}

October 2014), Art. 68, compare to Statute of the Tribunal (September 2013), at http://www.icty.org > Legal Library (accessed 1 October 2014), Art. 22: “The International Tribunal shall provide in its rules of procedure and evidence for the protection of victims and witnesses. Such protection measures shall include, but shall not be limited to, the conduct of in camera proceedings and the protection of the victim’s identity.”

84_{Elements of Crimes, (ICC-ASP/1/3(part II-B), 2011), at www.icc-cpi.int > Legal Texts and Tools (accessed 1}

October 2014), Art. 7(1)(g)-1: “The perpetrator invaded the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opeing of the victim with any object or any other part of the body.”

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the implementation. So far there have been two convictions by the ICC, both against perpetrators from the Democratic Republic of Congo. In the first case, against Thomas Lubanga Dyilo, no charges of sexual violence were included in the indictment, even though the evidence in the case showed sexual violence against child soldiers.85_{In the}

other case, against German Katanga, the charges of sexual violence were acquitted.86

These examples show that in every single case there must be paid special attention to the inclusion of sexual violence charges. These examples of the cases at the ICC show that the actual prosecution of sexual violence remains a constant struggle in which awareness must be continuously raised.

Conclusion

The ICTY contributed significantly to the recognition of sexual violence under

international law. Before the erection of the ad hoc Tribunals sexual violence had not been prosecuted as a crime against humanity. It was enumerated in some of the statutes of international tribunals such as the IMT after World War II, but this tribunal failed to charge people for sexual violence.

The ICTY and the ICTR successfully prosecuted various forms of sexual violence. They first defined the crime of rape, which they both listed as a crime against humanity in their statutes. The ICTY accepted a definition of rape that included oral penetration as a form of rape and started a fruitful discussion about the issue of consent by victims of sexual violence. The Trial Chamber came to the conclusion that under certain

circumstances the issue of consent was irrelevant because the environment in which the victim was detained could be seen as coercive.

The Tribunal also adopted several measures to assist victims of sexual violence. They appointed a Gender Issues Legal Officer and incorporated several rules in their Rules of Procedure and Evidence that were meant to protect witnesses of gender crimes when they testified in court.

85_{Moreno-Ocampo, “The Place of Sexual Violence in the Strategy of the ICC Prosecutor”, in De Brouwer}

(2013), 154.

86_{ICC Press Release, “Germain Katanga found guilty of four counts of war crimes and one count of crimes}

against humanity committed in Ituri, DRC” (7 March 2014), at www.icc-cpi.int > Press and Media (consulted at 1 October 2014).

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But most importantly, the ICTY was able to prosecute several perpetrators of sexual violence committed against both male and female victims. They convicted alleged perpetrators for sexual crimes under all the provisions of their statute, except for the crime of Genocide. However, since gender crimes are often perpetrated against an individual, this does not make it easy to prove that the crimes were perpetrated in a systematic fashion. The chance of a successful prosecution enhances by charging the crime under a different provision than Genocide.

The jurisprudence from the different prosecutions of sexual violence by the

tribunals have been put to good use by the ICC, who incorporated various forms of sexual violence in their statute. Unfortunately, to date the ICC has not been able to successfully prosecute sexual violence in their cases. This shows that even though the recognition of sexual violent crimes has certainly increased over the past decades, it still remains a struggle to successfully prosecute these crimes. Successful prosecution of sexual violence remains a challenge for the ICC and other international tribunals in the future. In this way they will be able to continue the job of the ICTY, to ensure the recognition and prosecution of sexual violence as a grave crime under international law.

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Chapter 2. Prosecution by the ICTY of Sexual Violence committed in Prijedor

During war and violent conflict people are capable of doing terrible things, things they never imagined they would be able to do. The perpetrators that committed sexual violence during the wars in the former Yugoslavia often had not committed any criminal acts before the war started. Croatian sociologist Jadranka Cacić-Kumpes portrays rapists in her work as extremely cruel and perverse people. She sees rape as one of the power tools that male opponents use against each other:

The cruelty of the rapists, and the extremely high incidence of rape, act as a sort of dialogue between male opponents. The woman as rape victim embodies the message that the more powerful opponent has conquered not only human “territory”, but also has destroyed the symbolic expression of power of the defeated contestant, i.e. his honour.87

During the war in Bosnia and Herzegovina between 1992 and 1995 rape often took place in the presence of military officers. Soldiers, policemen and paramilitaries raped their victims in front of witnesses, sexual violence was not perpetrated in secret because the perpetrators were not afraid that they would be prosecuted for the crimes they were committing. One of the major contributions of the ICTY in the prosecution of sexual violence is that the impunity for these crimes comes to an end. With the way they prosecute sexual violence the tribunal has the opportunity to clarify international law on this subject and to explicitly recognize rape as a grave crime under international law, explained in chapter one.

A lot of the perpetrators of sexual violence from the Prijedor municipality in Bosnia and Herzegovina that were indicted by the ICTY committed their crimes in the prison camps that were erected in this region. In this chapter the position of these men within the region and the camps will be discussed through the transcripts of their cases, as well as the crimes they committed for which they were indicted by the tribunal. Practical issues with regard to the prosecution of sexual violence will then be investigated through some of the cases from the perpetrators from Prijedor. One of these issues is the question of superior responsibility. Within the prison camps there was often a hierarchically structured organization of leadership. The majority of the higher-level perpetrators did not do anything when they knew soldiers under their command committed crimes of

Indictment, Conviction, Imprisonment and Reintegration of ICTY Perpetrators of Sexual Violence. Case Studies from Prijedor, Bosnia and Herzegovina