Sexual Violence Against Women : The Legacies of the ad hoc Tribunals of Rwanda and of the Former Yugoslavia

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J U R I D I C U M

Sexual Violence Against Women

The Legacies of the ad hoc Tribunals of Rwanda and of the Former

Yugoslavia

Fanny Johansson

VT 2020

RV600G Rättsvetenskaplig kandidatkurs med examensarbete 15 högskolepoäng

Examinator: Adam Croon Handledare: Maria Sjöholm

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Abstract

Historically speaking, acts of sexual violence have been ignored. With the introduction of the era of silence and the era of honour, acts of sexual violence were either considered to be too atrocious to even be mentioned, or they were considered to injure the woman’s honour, and not the woman’s dignity, which points to the patriarchal idea that sexual violence crimes are inferior crimes, like crimes of property.

However, the third era provided a change, which consisted in two international tribunals: the International Criminal Tribunal for Rwanda (ICTR), and the International Criminal Tribunal for the former Yugoslavia (ICTY).

Through examining case-law from the ICTR and the ICTY, it became clear that a broad definition of acts of sexual violence was adopted, as acts of sexual violence were, for

example, defined as not requiring any physical contact at all. This broad definition provided a hopefulness that all victims and survivors of sexual violence would receive reparations. However, the purpose of the ICTR and the ICTY was to only prosecute grave breaches of international criminal law, that is, for instance, crimes of genocide, or crimes against humanity. The narrow purpose and the broad definition thereby clashed. Since the narrow, instrumental, focus and purpose of the ICTR and the ICTY was to only prosecute sexual violence crimes amounting to crimes of genocide or crimes against humanity, it was not possible for victims and survivors of sexual violence crimes not amounting to crimes of genocide or crimes against humanity to receive reparations.

Through scrutinizing critiques from feminist scholars, a conclusion could be made that although the ICTR and the ICTY made tremendous efforts with regards to the inclusion of acts of sexual violence within the prosecutions, there is still much work that needs to be done, especially with regards to provide reparations for all victims subjected to acts of sexual violence. That mission is now up to the International Criminal Court (ICC) to accomplish.

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1. Introduction ... 1

1.1 Background ... 1

1.2 Aims and Research Questions ... 2

1.3 Delimitations ... 2

1.4 Method and Material ... 2

1.5 Structure ... 5

2. The Evolution of Prohibiting Sexual Violence in International Criminal Law 6

2.1 International Criminal Law ... 6

2.2 The Nuremberg Trials ... 6

2.3 The Geneva Conventions ... 7

2.4 Rwanda ... 7

2.5 The Former Yugoslavia ... 9

2.6 The International Criminal Court ... 10

2.7 Summary of the Evolution of Prohibiting Sexual Violence in International Criminal Law ... 11

3. The Tribunals’ Perception of Concepts ... 12

3.1 Sexual Violence in International Criminal Law ... 12

3.2 Gender-Based Sexual Violence ... 13

3.2 Defining Sexual Violence ... 15

3.2.1 Prosecutor v. Jean-Paul Akayesu ... 18

3.2.2 Prosecutor v. Vlastimir Đorđević ... 19

3.3 Crimes Related to Sexual Violence ... 20

3.3.2 Prosecutor v. Miroslav Kvočka, Dragoljub Prcac, Milojica Kos, Milan Radi, and Zoran Zigic ... 20

3.4 Defining Rape ... 24

3.4.2 Prosecutor v. Anto Furundžija ... 24

3.4.3 Prosecutor v. Dragoljub Kunarac, Zoran Vuković and Radomir Kovač ... 25

3.5 Crimes Related to Rape ... 27

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3.6 Crimes Related to Forced Nudity ... 30

3.7 Summary of the Tribunals’ Perception of Concepts ... 32

4. Sexual Violence as Instrumental ... 34

4.1 Feminist Critique ... 34

5. Final Discussion ... 36

6. Conclusion ... 38

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1. Introduction

1.1 Background

From the early beginnings in the development of international law, rape was considered an acceptable practice in the heat of natural instincts during battle1

Historically speaking, sexual violence has been, in times of war, declared as ‘[…]

unavoidable […]’,2_{and has been a mark or way of victory, where the acts of sexual violence} have been a way for soldiers to, for example, prove their masculinity and their success.3 As the underlying reasons for committing acts of sexual violence are many, it is important to mention that the acts themselves may take different forms. As was described by Estelle Zinsstag, sexual violence may for example include acts of rape, sexual assault, forced prostitution, forced impregnation, and sexual slavery or mutilations.4

Acts of sexual violence have historically not been recognised. In fact, sexual violence has in historic terms been ‘[…] ignored or simply tolerated by the various sides waging wars […]’5_. It has even been described that for centuries, ‘[…] the era of silence […]’6 prevailed, pointing to the non-acknowledgement of sexual violence within international criminal law.

However, with the criminal prosecutions of the ICTR and the ICTY, it became clear that history can make progress.

Darryl Robinson and Gillian MacNeil expressed that ‘[…] it is common sense’7_{that acts of} sexual violence are to be considered as grave, when discussing the aftermath of the above-mentioned criminal prosecutions. This statement may seem natural, non-controversial. But in a sense, it distils complexity. A complexity addressing the legacies of the ICTR and the ICTY regarding sexual violence.8 It also raises the complexity regarding the actual purpose of the ICTR and the ICTY, and whether that purpose truly was in line with what they were trying to create.

1_{Hilly Moodrick-Even Khen and Alona Hagay-Frey, 'Silence at the Nuremberg Trials: The International}

Military Tribunal at Nuremberg and Sexual Crimes against Women in the Holocaust' (2013) 35 Women's Rts L Rep 43, 54-55.

2_{ibid, 55.} 3_ibid.

4_{Conflict and Transitional Justice: Feminist Approaches - Emory University - September 19-20, 2008. Atlanta,}

Emory University, 2.

5_{ibid, 4.}

Military Tribunal at Nuremberg and Sexual Crimes against Women in the Holocaust' (2013) 35 Women's Rts L Rep 43, 56.

7_{Darryl Robinson and Gillian MacNeil, 'The Tribunals and the Renaissance of International Criminal Law:}

Three Themes' (2016) 110 Am J Int'l L 191, 192.

8_{Kelly-Jo Bluen, 'Globalizing Justice, Homogenizing Sexual Violence: The Legacy of the ICTY and ICTR in}

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1.2 Aims and Research Questions

The purpose of this paper is to examine the legacies of the ICTR and the ICTY, in the light of defining and prosecuting acts of sexual violence.

In the pursuit of meeting the purpose, this paper aims to discuss the following questions: • What was the purpose of the ICTR and the ICTY?

• In the light of the purpose of the ICTR and ICTY, how have acts of sexual violence been defined and prosecuted?

• What legacies do the ICTR and the ICTY leave behind, in terms of defining and prosecuting acts of sexual violence?

1.3 Delimitations

In order to reach the above-mentioned purpose, some delimitations are applied.

Firstly, it is important to understand that the length of this paper prohibits a long contextual background into both the evolution of prohibiting acts of sexual violence, but also into the conflicts themselves. There are several interesting inquiries to this subject, but the importance lies within the core. Therefore, the greatest parts of this work are the discussions regarding the case-law, and the legacies. Also, with regards to the length of this paper, only acts of sexual violence, rape, and forced nudity are scrutinized, and only crimes against humanity and crimes of genocide are examined.

Secondly, with regards to the previously mentioned core, there are also several legacies or consequences to raise. But for the purpose of this paper, a delimitation to include

consequences affecting the international criminal law sphere and the victims subjected to acts of sexual violence, is made with the intent to thoroughly show the extent of the legacies the ICTR and the ICTY leave behind.

Lastly, it is important to raise and acknowledge the fact that there are several interesting angles that could be applied in this sense, but the approach shining in this paper is one of feminism. It is also important to finally mention that this paper focuses on international criminal law, but some aspects within international humanitarian law are also, very briefly, mentioned.

1.4 Method and Material

This paper uses the traditional legal method of identifying the law, also known as the legal dogmatic method, and hereby, an explanation follows as to why the traditional legal method is used, and how.

The traditional legal method shows itself in several different ways throughout this paper. First and foremost, it is used as a tool for identifying the relevant sources of international law in order to answer the previously posed questions. For this purpose, the traditional legal method is used to establish a de lege lata perspective, which means that the method is used to identify the current state of the law,9 in order to then identify the problems of the current state. When

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the de lege lata perspective has been identified, the traditional legal method is used to describe how the law shouldbe, to essentially solve the problems identified in the previous section, from a de lege ferenda10 perspective.

What this points to, is that this paper is both descriptive and analysing in its nature, because it is important to provide the reader with contextual backgrounds into how acts of sexual

violence have historically been perceived and prohibited within the international criminal law sphere, in order to use and reminisce of that background when presenting the analyses. The application and adoption of the traditional legal method is possible, in this paper, with the influence of a feminist approach, where the approach is used to highlight issues and acknowledge struggles.

Lastly, it is important to present the material used in this paper. The material used is to be found in the ‘[…] commonly accepted sources of law’11_{, and is composed by some influence} from international treaties and conventions, but mainly by jurisprudence from the ICTR and the ICTY, and doctrine mainly by feminist scholars.12

In addition to the simplistic statement above, with regards to the material used in this paper, a more thorough examination of the material hereby follows.

In accordance with Article 38 of the Statute of the International Court of Justice, international treaties,13 customary international law,14 general principles of international law,15

jurisprudence,16 and doctrine,17 are all examples of sources of international law.

When this particular distinction is made, it is important to discuss the difference between them. More specifically, it is important to examine the difference between hard law and soft law, and the aspects of binding or non-binding elements within international law. But a discrepancy must first be made, because for the purpose and relevance of this paper, only international treaties, jurisprudence, and doctrine are mentioned. Furthermore, for the discussion following in this particular section, only international treaties and jurisprudence will be raised. This because of the importance to raise the differences between the two, and because of their crucial importance for this paper; to raise awareness from a de lege lata perspective. Therefore, the reason to exclude doctrine from this particular section of the discussion, is because the use of doctrine is from a de lege ferenda perspective, thereby establishing solutions and raising awareness of the problem mentioned within the jurisprudence and the international treaties.

As is quite apparent, international treaties are examples of what forms the hard law within the international law sphere. Hard law in this sense, has been described as an instrument allowing

10_{ibid, 36.} 11_{ibid, 21.} 12_ibid.

13_{United Nations, Statute of the International Court of Justice, 18 April 1946 art 38(1a).} 14_{ibid, art 38(1b).}

15_{ibid, art 38(1c).} 16_{ibid, art 38(1d).} 17_{ibid, art 38(1d).}

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‘[…] states to commit themselves more credibly to international agreements’,18_{and the} treaties are thereby considered as binding.

Soft law, however, is to be considered as ‘[…] a continuum, or spectrum, running between fully binding treaties and fully political decisions’19_{. For instance, soft law may be ‘[…] the} decisions of international tribunals […]’20_{. This aspect is interesting and important, as the} core of this paper revolves around jurisprudence from the ICTR and the ICTY, two international tribunals.

What needs to be reminisced, is the fact that states’ obligations are based upon consent, and it is only with the part of consent that the obligations become just that. However, influencing states may take different forms as well:

The passing of binding decisions [by an international body] is not the only way in which law development occurs. Legal consequences can also flow from acts which are not, in the formal sense, “binding”21

Examples of actions that are not binding in the formal sense, are decisions and jurisprudence of international tribunals. These are, in themselves ‘[…] nonbinding interpretations of binding legal rules’22_.

In addition to this and in accordance with the views of Andrew T. Guzman and Timothy L. Meyer, the above-mentioned aspects of the possibility to create legal consequences based on jurisprudence from international tribunals,

[…] captures the essence of how soft law is defined here: non-binding rules that have legal consequences because they shape states’ expectations as to what constitutes compliant behavior23

Guzman and Meyer further explained that the reason as to why tribunals are established, are because of the ‘[…] ability to make international common law […]’24 in order to ‘[…] get around the state consent requirement to the creation of international obligations’.25_{What this} means, is that ‘Unlike an explicit agreement, to which states generally must consent before being bound […]’,26 as previously mentioned, decisions or jurisprudence from a tribunal can be issued as basing on a binding legal rule, ‘[…] without the consent of all states subject to that rule’.27_{The jurisprudence is thereby not binding in itself, but ‘[…] it shapes the}

expectations of all states bound by the underlying obligation’.28

Therefore, the material composed of the decisions by the ICTR and the ICTY plays an essential role for the purpose of this paper, because of the legal consequences they create.

18_{Gregory C. Shaffer and Mark A. Pollack, 'Hard vs. Soft Law: Alternatives, Complements, and Antagonists in}

International Governance' (2010) Minnesota Law Review 706, 717.

19_{Andrew T Guzman and Timothy L Meyer, 'International Soft Law' (2010) 2 J Legal Analysis 171, 173.}

20_ibid. 21_{ibid, 175.} 22_{ibid, 171.} 23_{ibid, 175.} 24_{ibid, 178.} 25_ibid. 26_ibid. 27_ibid. 28_ibid.

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1.5 Structure

Chapter 2 will include a contextual background into the evolution of prohibiting acts of sexual violence within international criminal law. It will establish the era of silence, which prevailed during the Nuremberg trials, which will point to the lack of acknowledgement and prosecution of acts of sexual violence. Further, it will establish the introduction of the era of honour, establishing acts of sexual violence as injuring to the woman’s social status, and not to the woman’s inherent dignity as a human being. Lastly, it will introduce the breach of both the era of silence and the era of honour, with the inclusion of acts of sexual violence within prosecutions of the ICTR and the ICTY. These prosecutions from the ICTR and the ICTY will lastly be acknowledged as essential within the work of the ICC.

Chapter 3 will introduce a brief mentioning of definitions of sexual violence within various international acts. One of these acts will then become the steppingstone for the analysis of gender-based violence, both in times of war and in peacetime. A contextual background into a landmark verdict will then be introduced, as well as a thorough analysis of various

jurisprudence from the ICTR and the ICTY with regards to defining and prosecuting acts of sexual violence.

As a response to the previous chapter, Chapter 4 will highlight and discuss the consequences and legacies the ICTR and the ICTY leave behind.

Chapter 5 will provide the concluding parts, by discussing the tremendous efforts by the ICTR and the ICTY, whilst also offering a solution to help mend the consequences of the previously mentioned legacies.

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2. The Evolution of Prohibiting Sexual Violence in International

Criminal Law

2.1 International Criminal Law

Before discussing the evolution of prohibiting acts of sexual violence, a very brief introduction to international criminal law is essential.

The crimes included in international criminal law are crimes of genocide, war crimes, and crimes against humanity.29 Individuals may be held personally responsible, if they have committed these international crimes.30 And as previously mentioned, this paper aims to only thoroughly discuss two of these three international crimes: crimes of genocide and crimes against humanity.

2.2 The Nuremberg Trials

During World War II, a peak previously unimaginable was reached, when the United States, the United Kingdom, and Russia declared their intolerance towards the war that was

conducted by Germany. The three states found that severe breaches of ‘[…] aggression and brutality of warfare […]’31 had occurred, together with ‘[…] systematic human rights violations […]’32_{. Therefore, it was decided that an international tribunal was to be}

established. This tribunal was established to prosecute the ‘[…] most important war criminals […]’33_{. Thereby were the Nuremberg trials ‘[…] the birth of international criminal}

procedure’34_.

In accordance with the opinions of Hilly Moodrick-Even Khen and Alona Hagay-Frey, it is to be considered as known that women in Nazi concentration camps were subjected to sexual violence. For instance, they report, women were subjected to ‘[…] forced nakedness […], forced or solicited prostitution, and rape’35_{, amongst other. Despite this, ‘[…] sex crimes in} general and specifically sexual crimes against women were excluded […]’36 from the article of the Charter of the International Military Tribunal at Nuremberg that referred to crimes against humanity.

As the ‘[…] era of silence […]’37_{prevailed during the time of the Nuremberg trials, acts of} sexual violence went unpunished. And as if that was not the worst of it, Moodrick-Even Khen and Hagay-Frey described that the prosecutors during the trials avoided and dodged away

29_{'Analysis of the punishments applicable to international crimes (war crimes, crimes against humanity and}

genocide) in domestic law and practice' (2008) 90 Int'l Rev Red Cross 461, 461.

30_{Edoardo Greppi, 'The evolution of individual criminal responsibility under international law' (1999) 81 Int'l}

Rev Red Cross 531, 537.

31_{Christoph Safferling, International Criminal Procedure (OUP, 2012) 640, 10.} 32_ibid.

33_ibid. 34_ibid.

36_ibid. 37_{ibid 56; 64.}

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from the mere subject. For example, when one of the prosecutors was asked about a

particular instance where 54 women and young girls had been subjected to sexual violence, he responded that

The tribunal will forgive me if I avoid citing the atrocious details.38

Sita Balthazar, legal scholar, delegate at the negotiations for the ICC, and drafter of decisions for the ICTR, stated that instead of confronting the matter head on, calling rape as it was, the prosecutor rather shied away from it, showing that acts of sexual violence was ‘[…] so impossible to prevent that it is unworthy of prosecution’39.

2.3 The Geneva Conventions

It is important to describe that when the era of silence ended, the ‘[…] era of honor’40_began. The era of honour was introduced in 1949 with the international humanitarian acts named the Geneva Conventions. This meant that a few sexual violence crimes were of question within the international criminal law sphere. The perspective of the Geneva Conventions with regards to sexual violence crimes were that sexual violence was found injuring

‘[…] the woman’s “honor” in its social meaning, rather than “dignity” in the sense of her inherent dignity as a human being’.41

The idea that acts of sexual violence hurt the woman’s honour points to the

‘[…] patriarchal idea that sex offenses are inferior crimes – such as crimes of property, torts and plunder – rather than crimes against the body and dignity of the victim who has been attacked’.42

2.4 Rwanda

The third era of the evolution to prohibit sexual crimes in international criminal law was introduced in the 1990s, with the establishment of the ICTR and the ICTY. The ICTR and the ICTY ‘[…] created a temporary revolution in their treatment of sex crimes in international law’43_{with their acknowledgment that sexual violence crimes should be seen as serious, and} with their inclusion of sexual violence crimes under ‘[…] all of the existing criminal

categories under international law […]’44 – crimes against humanity, genocide, […]. With this, the ICTR and the ICTY ‘[…] broke the silence and breached the honor boundaries […]’45_.

38_{ibid, 64-65.}

39_{Sita Balthazar, 'Gender Crimes and the International Criminal Tribunals' (2006-2007) 10 Gonz J Int'l L 43, 44.}

41_{ibid; International Committee of the Red Cross (ICRC), Geneva Convention Relative to the Protection of} Civilian Persons in Time of War (Fourth Geneva Convention) art 27.

43_{ibid, 57.} 44_ibid. 45_ibid.

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But before going into great detail with regards to the extent of the inclusion of sexual violence within the case-law of the ICTR and the ICTY, a brief contextual background and explanation of the conflicts hereby follows.

Historically speaking, the Hutu population has ‘[…] controlled the state and therefore meted out retribution to the minority Tutsis’46_{. But in 1993, a predominantly Tutsi political party} was to be introduced into the government. This caused a stir within the Hutu parties, and this all led to tensions between the Hutus and Tutsis.47_{The President in Rwanda at this time, the} Hutu Juvénal Habyarimana, was killed in 1994 when his plane was shot down. The Hutus blamed this event on the Tutsis, and thus, the war was unavoidable. Throughout the war, 800,000 people were killed.48

In addition to this, acts of sexual violence were an integral part of this conflict. For example, ‘[…] mass rapes were an integral part of the concerted campaign by Hutu politicians and militia leaders to rid the country of its Tutsi minority’49_{, and women were subjected to acts of} sexual violence ‘[…] on a massive scale, perpetrated primarily by members of the infamous Hutu militia group […] Interahamwe, as well as by civilians incited to violence by extremist propaganda and threats’50_.

This contextual background is to be considered as enough for this part of the paper, as the next chapter examines the case-law more thoroughly. Next, it is essential to determine the purpose of the ICTR, before discussing the contextual background of the conflict in the former Yugoslavia and the purpose of the ICTY.

The ICTR was established by the UN Security Council to

[…] prosecute persons responsible for serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for such violations committed in the territory of

neighbouring states, between 1 January 1994 and 31 December 1994 […]51

Further, it has been declared that the ICTR was not established to deal with ‘[…] “ordinary” violations of international law […]’52. Rather, the ICTR was established to deal with ‘[…] grave international crimes amounting to genocide, crimes against humanity […]’53. As a consequence of this, the ICTR deals with, for instance, sexual violence only in instances where the acts of sexual violence are acknowledged as grave.

Lastly, it is of crucial importance to mention that the Statute of the ICTR did not explicitly mention acts of sexual violence. However, as will be revealed and discussed in the next

46_{Rok Ajulu, 'Democratisation and conflict in eastern Africa: Kenya’s succession crisis and its likely impact on}

eastern Africa and the Great Lakes region' (2001) Institute for Global Dialogue 10, 10.

47_{ibid, 11.} 48_{ibid, 12}

49_{Jamille Bigio, Rachel Vogelstein, 'Understanding Sexual Violence in Conflict' (2017) Council on Foreign}

Relations 3, 7.

50_ibid.

51_{UN Security Council, Statute of the International Criminal Tribunal for Rwanda (as last amended on 13} October 2006), 8 November 1994 art 1.

52_{United Nations Department of Peacekeeping Operations, Review of the Sexual Violence Elements of the}

Judgments of the International Criminal Tribunal for the Former Yugoslavia, the International Criminal Tribunal for Rwanda, and the Special Court for Sierra Leone in the Light of Security Council Resolution 1820 (2009) [22].

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chapter, the ICTR has categorised acts of sexual violence in accordance with grave breaches of international criminal law.

2.5 The Former Yugoslavia

As previously described, the ICTR and the ICTY established the third era of the evolution of prohibiting sexual violence crimes in international criminal law, by including acts of sexual violence under crimes of, for instance, genocide, and crimes against humanity.

Hereby follows a brief contextual background into the conflict in the former Yugoslavia, and an examination of the purpose of the ICTY.

The conflict in the former Yugoslavia stemmed from the need and desire for self-determination, and sovereignty, with Croatia and Slovenia being the first two that ‘[…] formally proclaimed themselves to be sovereign and independent nations, thereby seceding from Yugoslavia’54_{. The Federal Executive Committee of Yugoslavia called the secession} ‘[…] unconstitutional […]’55_{, and so did the Serbians that were living in Croatia. The} mentioned Serbians were so against this proclamation that they took over some of Croatia’s territory. The Yugoslav military controlled by Serbia ‘[…] joined the fighting on the side of the Serbs’56_{. The Serbian President Slobodan Milosevic ‘[…] called on Yugoslavia’s nine} million Serbs to prepare to defend their nation and national interests’57_{, and so, the war had} begun.

During the course of the war, reports that ‘[…] concentration camps, torture, sexual violence, mass killings, forced deportations, destruction of private and cultural property, pillage and theft […]’58, amongst others, occurred. In addition to this, reports that disclose ‘[…] “ethnic cleansing” […]’59_{‘[…] as part of a genocidal campaign […]’}60_{to commit systematic sexual} violence was of question in this conflict.

This contextual background is to be seen as enough for this part of the paper, since the next chapter raises and discusses case-law from this conflict. The importance lies now within the examination of the purpose of the ICTY.

Equivalent to the ICTR, the ad hoc tribunal for the former Yugoslavia was established by the UN Security Council to deal with grave breaches of international law, for instance crimes against humanity, and ‘[…] crimes amounting to genocide […]’61, and the Statute of the International Criminal Tribunal for the Former Yugoslavia (hereinafter referred to as the

54_{Ben Bagwell, 'Yugoslavian Constitutional Questions: Self-Determination and Secession of Member}

Republics' (1991) 21 Ga J Int'l & Comp L 489, 489-90.

55_{ibid, 490.} 56_{ibid, 491.} 57_{ibid, 492.}

58_{Bassiouni, M. Cherif; McCormick, Marcia. Sexual Violence: An Invisible Weapon of War in the Former}

Yugoslavia. Chicago, International Human Rights Law Institute, 5.

59_{Rhonda Copelon, 'Surfacing Gender: Re-Engraving Crimes against Women in Humanitarian Law' (1994) 5}

Hastings Women's LJ 243, 244.

60_{ibid, 244-45.}

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Statute of the ICTY) thereby regulates the possibility for the ad hoc tribunal for the former Yugoslavia to

[…] prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991 […]62

In accordance with the previously mentioned purpose of the ICTR to regulate only grave breaches of international law, the purpose of the ICTY is the same.63 This means that the ICTY was not ‘[…] established to deal with […] “ordinary” violations of international law […]’64_{, amounting its judgments to only deal with ‘[…] grave instances […]}65_{of, for} example, sexual violence.

Lastly, as was the case in the Statute of the ICTR, it is important to mention that the Statute of the ICTY did not explicitly mention acts of sexual violence. But, in accordance with the jurisprudence of the ICTY, which later will be discussed, acts of sexual violence have been considered breaches of international criminal law.

2.6 The International Criminal Court

In the aftermath of the Nuremberg trials, the matter regarding breaches of international law were broadly discussed, and it became clear to the international criminal law sphere that a permanent international criminal court was needed.66_{However, it took more than five} decades after the Nuremberg trials to establish the ICC, but in 1998 the Statute of the ICC (hereinafter referred to as the Rome Statute) ‘[…] was passed in Rome after difficult negotiations […]’67_.

With the establishment of the Rome Statute, ‘[…] a new status quo […]’68_{had emerged. The} Rome Statute ‘[…] unified the entire history of criminal law, making it arguably the modern code of international criminal law’69_.

The jurisprudence of the ICTR and the ICTY ‘[…] was instrumental in the inclusion of sexual violence during the negotiations for the development of the Rome Statute […]’70, as it led the way with regards to prosecuting and acknowledging acts of sexual violence as a crime against humanity, and as a crime of genocide, as will be explained and examined in the next chapter of this paper.

62_{UN Security Council, Statute of the International Criminal Tribunal for the Former Yugoslavia (as amended} on 17 May 2002), 25 May 1993 art 1.

64_ibid. 65_ibid.

66_{Nico Stephan, 'The International Criminal Court' (1999) 8 Tilburg Foreign L Rev 297, 297.} 67_ibid.

69_ibid.

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Acts of sexual violence with regards to the crime of genocide is, however, not included in the wording of the Rome Statute, ‘[…] but the link between sexual violence and genocide is articulated in the ICC’s Elements of Crimes Document […]71_{, which has been explained as} being ‘[…] explicitly indebted to the linking of sexual violence to genocide in the Akayesu case at the ICTR’72_{, a case explained and examined in the next chapter of this paper.}

2.7 Summary of the Evolution of Prohibiting Sexual Violence in International Criminal Law

As described in this chapter, it is important to reminisce the introduction of the ICTR and the ICTY into the international criminal law sphere. With the previous eras passed, and the third evolution in place, hope began to take form. Hope that, finally, sexual violence crimes would be properly prosecuted, and that all victims and survivors of these heinous acts are protected under international criminal law and will thereby be provided reparations.

71_{ibid; International Criminal Court (ICC), Elements of Crimes, 2011 art 6, 2-4.}

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3. The Tribunals’ Perception of Concepts

3.1 Sexual Violence in International Criminal Law

As previously mentioned, acts of sexual violence are regulated in several international treaties, and the matter of sexual violence has been raised in several contexts. For instance, the final report from the UN Special Rapporteur on Systematic Rape, Sexual Slavery and Slavery-like Practices during Armed Conflict, it was duly noted that

[…] “sexual violence” […] defines as any violence, physical or psychological, carried out through sexual means or by targeting sexuality73

It was also defined that sexual violence, with the inclusion of both physical and psychological aspects, shall cover

‘[…] attacks directed at a person’s sexual characteristics, such as forcing a person to strip naked in public, mutilating a person’s genitals, or slicing off a woman’s breasts’74

One treaty already mentioned in this paper is the Rome Statute. The Rome Statute regulates and defines acts of sexual violence in accordance with crimes against humanity75, and as previously mentioned, crimes of genocide76, albeit crimes of genocide are not explicitly mentioned within the Rome Statute itself.

The Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence, defines sexual violence as acts that are ‘[…] non-consensual […]’77 in their character.

Finally, the UN World Health Organization (hereinafter referred to as the WHO), in its World Report on Violence and Health, defined sexual violence as

[…] any sexual act, attempt to obtain a sexual act, unwanted sexual comments or advances, or acts to traffic, or otherwise directed, against a person’s sexuality using coercion […]78

The WHO developed its definition by stating that sexual violence may occur at any place, at any time, with different circumstances and different settings.79 The WHO also reported that acts of sexual violence may be portrayed as gender-based violence, which means that the ‘[…] roots of violence […]80_{are to be considered ‘[…] in the context of culture, gender and} other social aspects’81_{To raise awareness of gender-based violence, ‘[…] human, social and} economic costs of violence against women and girls’82_{must be taken into consideration.}

73_{UN Sub-Commission on the Promotion and Protection of Human Rights, Systematic rape, sexual slavery and}

slavery-like practices during armed conflict: final report / submitted by Gay J. McDougall, Special Rapporteur,

22 June 1998, E/CN.4/Sub.2/1998/13 [21].

74_ibid.

75_{UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July}

1998, ISBN No. 92-9227-227-6, art 7.

76_{International Criminal Court (ICC), Elements of Crimes, 2011 art 6, 2-4.}

77_{Council of Europe, The Council of Europe Convention on Preventing and Combating Violence against}

Women and Domestic Violence, November 2014, ISBN 978-92-871-7990-6, art 36.

78_{UN World Health Organization (WHO), World report on violence and health, 2002, ISBN 92 4 154561 5,}

149.

79_ibid. 80_{ibid, 167.} 81_ibid. 82_{ibid, 169.}

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3.2 Gender-Based Sexual Violence

These statements from the WHO are interesting, and they also draw attention to a serious issue worth exploring. It is important to describe and analyse gender-based sexual violence in the context of the purpose of this paper. The reason as to why, is because the sub-chapters below scrutinize case-law from the ICTR and the ICTY where men target women.

But before discussing that, it is important to initially describe and examine the contextual

circumstances into acts of sexual violence in times of war, and acts of sexual violence

committed during peacetime, from a perspective of gender-based violence. Based on the previously mentioned factors raised by the WHO with regards to gender-based violence, and based on the purpose of this paper with regards to the examination of case-law, the focus in this part lays, mainly, on the underlying factors why men commit acts of sexual violence.

Being well aware that women also commit acts of sexual violence, a humble statement follows with a message clarifying that that story is for someone else to discuss in another paper.

Acts of sexual violence, according to Juris Doctor Tamara L. Tompkins, ‘[…] happens during war for the same reasons it happens during peace’83_{. Tompkins developed the argument by} stating that sexual violence

‘[…] is a phenomenon rooted in inequality, discrimination, male domination and aggression, misogyny and the entrenched socialization of sexual myths’84

Tompkins developed this argument, stating that acts of sexual violence are acts of inequality as they express and contribute ‘[…] to the domination of women by men in every aspect of every society’85_{, whether it may be inequality in an economic sense, in a political sense, or in} an educational sense. The ‘[…] male domination and aggression […]’86 aspect stems from, according to Tompkins, the ‘[…] deeply imbedded […]’87_{expectation that men are to be} aggressive and women are taught to be ‘[…] passive and feminine’88_{. The aspect regarding} sexual myths, Tompkins discussed, points to the fact that when boys create their sexual identity, they are surrounded by ‘[…] media images depicting women as objects’89, and they are thereby taught that ‘[…] men “gotta have it” and can’t control it, and women are there, accessible, to supply it’90.

These opinions and views are similar to that of the American lawyer Wendy Rae Willis, who stated that by the objectification of women, they ‘[…] become obvious targets for sexual violence’91_{. Willis developed this argument by expressing that ‘We, as a society, maintain the} power imbalance by continuing to socialize men to dominate’92, and concluded with

83_{Tamara L Tompkins, 'Prosecuting Rape as a War Crime: Speaking the Unspeakable' (1995) 70 Notre Dame L}

Rev 845, 851. 84_ibid. 85_ibid. 86_{ibid, 851.} 87_{ibid, 854.} 88_ibid. 89_ibid. 90_ibid.

91_{Wendy Rae Willis, 'The Gun Is Always Pointed: Sexual Violence and Title III of the Violence against}

Women Act' (1992) 80 Geo LJ 2197, 2207.

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The unconscious thinking seems to go as follows: being aggressive is masculine; being sexually aggressive is masculine; rape is sexually aggressive behavior; therefore, rape is masculine behavior’93

Like Tompkins, Willis was not so adamant with regards to the clarification of which underlying factor is the right one. Rather, the standpoint was, just like Tompkins, that ‘[…] widespread male on female violence and societal oppression of women are mutually dependent’94_{. Furthermore, Willis expressed that men are able to commit acts of sexual} violence ‘[…] because of their power-privileged position in society, and many women are unable to effectively alter the power imbalance because of their fear of male violence’95_{. This} inferior position of women, and the societal incapability to justify the imbalance of power, or to change this imbalance of power, make women reminded of that ‘[…] they are vulnerable, unequal, and exist only by man’s good graces’96_.

So, the reason as to why acts of sexual violence are committed in peacetime is because of the underlying social and societal reasons telling us how we should be, how we should act, how we should perceive ourselves and especially others. Because of the inferior position that women face every day in their everyday lives, in every aspect whether it may be political or economic, social or educational, and because of the objectification women face every day, society is telling them that they are unequal and vulnerable, and that there is nothing they can do about it. It is these types of societal views that make women ‘[…] become obvious targets for sexual violence’97_.

With regards to sexual violence being committed during times of war, it has been described that sexual violence ‘[…] is more than a symptom of war or evidence of its violent excess’98, expressing that sexual violence in wartimes is ‘[…] a familiar act with a familiar excuse’99, raising awareness to the previously mentioned statement by Tompkins that sexual violence is a deep-rooted problem stemming from difficulties arising in everyday life. Tompkins

developed this argument by stating that sexual violence in times of war is simply an

exaggeration of ‘[…] the conditions which give rise to […]’100_{sexual violence in peacetime.} Tompkins described that acts of sexual violence in wartimes are committed for three reasons. Firstly, sexual violence is used by ‘[...] men on the conquering side […]’101 ‘[…] as a means of expressing the totality of victory’102_{. Secondly, sexual violence is used as a ‘[…] just} reward for war weary troops’103_{. And thirdly, sexual violence is used as ‘[…] a tactical} employment […] to subjugate people […]’104_.

93_ibid. 94_ibid. 95_ibid.

96_{Catherine N Niarchos, 'Women, War, and Rape: Challenges Facing the International Tribunal for the Former}

Yugoslavia' (1995) 17 Hum Rts Q 649, 689.

97_{Wendy Rae Willis, 'The Gun Is Always Pointed: Sexual Violence and Title III of the Violence against}

Women Act' (1992) 80 Geo LJ 2197, 2207.

98_{Susan Brownmiller, Against Our Will: Men, Women and Rape (Bantam Books, 1st edn 1975) 472, 115.}

99_ibid.

100_{Tamara L Tompkins, 'Prosecuting Rape as a War Crime: Speaking the Unspeakable' (1995) 70 Notre Dame}

L Rev 845, 852.

101_{ibid, 859.} 102_ibid. 103_{ibid, 863.} 104_{ibid, 866.}

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Tompkins further described that just like sexual violence is

‘[…] the exaggeration of traditional gender roles that encourage violence toward women as acts of machismo and control […]105

War is

[…] an exaggeration of the conditions which hold out violence as the central mechanism for human interaction’106

So, the reasons as to why men commit acts of sexual violence in peacetime is because of their male domination and aggression, because of their superior position when it comes to every aspect in the everyday life, because of their deep-rooted misogyny, and because the fact that men are taught to be masculine, in every sense of the word. All these aspects sound crazily unnecessary from a feminist approach, but it is important to clarify that in times of war, these qualities are what is sought for in a man. ‘Aggression, violence, a tolerance for pain and discomfort, and the ability to self-defend are generally rewarded in war’107_{, and passiveness} or emotionalism are not. Because of this, ‘[…] war legitimates violence and aggression as the means for getting what is desired’108, which usually is victory. And if the desired end is victory, ‘[…] then by all means […]’109_{, sexual violence will be employed.}

To conclude, because of their superiority in everyday life, masculinity prevails. And because masculinity prevails in everyday life, who is to say that it will do otherwise in times of war? By leaving this sub-chapter, a new path follows. This paper has, so far, discussed how acts of sexual violence are defined and regulated within international criminal law, and in addition to that, a general discussion from a feminist approach with regards to acts of sexual violence in peacetime and in times of war, has been provided. What is important now, is the actual core of this paper, what the paper actually aims to scrutinize and examine, which is how the ICTR and the ICTY have defined and prosecuted acts of sexual violence in accordance with the purpose of each tribunal respectively.

However, before the examination of the relevant case-law is provided, a discussion and historical background into a landmark verdict that later will prove its significance, is hereby presented.

3.2 Defining Sexual Violence

The case of Prosecutor v. Jean-Paul Akayesu is seen as a landmark verdict, because of its broad scope of defining sexual violence and for its brave, progressing stance on prosecuting criminal acts of sexual violence. The ICTR has been praised for its tremendous actions with regards to this case, and the case has caught great publicity within the international criminal law sphere.

As will be raised in this paper, there is not one act where the case of Prosecutor v. Jean-Paul

Akayesu does not have significance. In the definition of sexual violence, the case of

105_{ibid, 869.} 106_ibid. 107_ibid. 108_ibid. 109_ibid.

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Prosecutor v. Jean-Paul Akayesu led the way in the controversial, yet brave, verdict

constituting acts of sexual violence as acts of genocide. In the definition of rape, the case of

Prosecutor v. Jean-Paul Akayesu characterized rape as ‘[…] a physical invasion of a sexual

nature, committed on a person under circumstances which are coercive’110_{, a definition} acknowledged and used in cases by the ICTY. Further, with regards to acts of rape, the case of Prosecutor v. Jean-Paul Akayesu has been acknowledged as essentially being the one to refer to, as its definition was preferred from an international criminal law perspective, since ‘The conceptual definition will better accommodate evolving norms of criminal justice’111_{. In} the definition of forced nudity, the ICTR in the case of Prosecutor v. Jean-Paul Akayesu was, of the two Tribunals in question, the first to identify the acts as sexual abuse, and was also the first of the two to include acts of forced nudity as ‘[…] other inhumane acts […]’112,

considering the acts humiliating and degrading for the victims.

As essential as it is to remember the importance and significance of this verdict, it is equally important to keep in mind that this case, in fact, ‘[…] initially failed to include rape and other acts of sexual violence […]’113_{. It was not until the trial bench, which ‘[…] consisted of} judges with broad and particular experience in matters of sexual violence and discrimination […]’114_{, asked especially poignant questions about the ‘[…] importance of including sexual} violence in cases involving international justice’115_{, after one witness had testified about the} fact that acts of sexual violence had been ‘[…] widespread […]’116_{. These questions posed by} the trial bench led to one of the judges, Judge Pillay, to subsequently ask to postpone the trial ‘[…] in order for further investigations to be carried out […]’117_.

Subsequent to this matter being raised by the trial bench, the Prosecutor wished to add further counts to the Indictment, namely

[…] rape, a Crime Against Humanity […], inhumane acts, as a Crime Against Humanity […], outrages on personal dignity, notably rape, degrading and humiliating treatment and indecent assault […]118

It may seem quite ironic that the case that initially failed to include acts of sexual violence later became the case to refer to as being in the forefront of the inclusion of acts of sexual violence.

Kirsten M. F. Keith, attorney, stated that had it not been for the previously mentioned questions raised by the trial bench, then

[…] it is doubtful the existence of sexual violence would have made it onto the trial record119

As Keith held,

110_{Prosecutor v. Jean-Paul Akayesu (Judgment) ICTR-96-4-T (2 September 1998) [598].}

111_{Prosecutor v. Alfred Musema (Judgment) ICTR-96-13-T (27 January 2000) [228].}

112_{Prosecutor v. Jean-Paul Akayesu (Judgment) ICTR-96-4-T (2 September 1998) [695]; [697].}

113_{Kirsten MF Keith, 'Justice at the International Criminal Tribunal for Rwanda: Are Criticisms Just' (2009) 27}

Law Context: A Socio-Legal J 78, 95.

114_ibid. 115_ibid.

116_{Conflict and Transitional Justice: Feminist Approaches - Emory University - September 19-20, 2008.}

Atlanta, Emory University, 4.

117_ibid.

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It demonstrates the Prosecution's inadequate approach to investigating and charging sexual violence120

These statements are worth considering, since had it not been for the trial bench and for the additional questions posed, who would have known how the situation had developed? As previously mentioned, this case has been in the forefront with regards to acts of sexual violence also in cases brought before the ICTY. Had the Prosecution in the case of

Prosecutor v. Jean-Paul Akayesu not received an epiphany, or a very helping hand, would

acts of sexual violence even be perceived as ‘[…] as important as any other crimes falling under the ICTR’s jurisdiction […]’121_{, or as important as any other crimes falling under the} ICTY’s jurisdiction, for that matter?

Whilst it is important to consider these aspects, it may also be worth noting that both the investigation and in the pursuit of prosecution, difficulties may arise. Keith raised two reasons as to the difficulties, namely that

Victims are not always forthcoming partly because they often face harsh consequences if they disclose that they have been sexually abused122

And that

The effective investigation and prosecution of sexual violence requires skilled personnel with expertise in this sensitive area, […]123

The second difficulty presented itself when the Prosecution admitted that ‘[…] insensitivity […]’124_{had occurred during the investigation of acts of sexual violence, and Keith described} that this lack of sensitivity may stem from the fact that it may be difficult to ‘[…] attract such personnel […]’125_{with the right skillset, because of the fact that ‘[…] the ICTR as an ad hoc} institution offers limited contracts’126_.

However, Keith explained, these two difficulties should not be an excuse not to include acts of sexual violence in the charges and in the prosecution. Instead, Keith raised that these two mentioned difficulties should be viewed as what they truly are, which is that they

[…] demonstrate […] the need for the Prosecution to have the will to approach sexual violence as a specialised crime requiring a particular methodology and sensitivity127

Keith further pointed to the Prosecution’s epiphany wishing to raise additional charges in relation to acts of sexual violence and described that this demonstrates the adoption of a new strategy. A strategy to prioritize acts of sexual violence.128

The strategy of making acts of sexual violence a priority has, as will be seen in this paper, followed through in cases by the ICTY as well. The strategy has, however, been met with some criticism that will be mentioned in the next chapter.

120_ibid. 121_ibid. 122_{ibid, 95-96.} 123_{ibid, 96.}

Law Context: A Socio-Legal J 78, 96.

126_ibid. 127_ibid. 128_ibid.

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The broad scope of inclusion of acts of sexual violence, followed in the aftermath of the previously mentioned incident, was, as will be raised below, a path followed by the ICTY. Both the ICTR and the ICTY also raised the criteria for coercion in the context of sexual violence. The ICTR discussed the coercive nature as something that may be of question when a victim is subjected to sexual violence whilst under threat, or intimidation. However, as will be discussed below, the ICTY was not as elaborate in its definition of the coercive criteria. Rather, it was simply stated that coercion may be used as a way of threatening a victim in a humiliating or degrading manner.

3.2.1 Prosecutor v. Jean-Paul Akayesu

Jena-Paul Akayesu was a bourgmestre in the Taba commune from April 1993 until June 1994. The bourgmestre position meant that he was ‘[…] responsible for the execution of laws and regulations and the administration of justice […]’129_{, as well as he had ‘[…] exclusive} control over the communal police […]’130. With Akayesu as bourgmestre, 2000 Tutsis were killed over a period of approximately two months.

In the period of these two months, hundreds of civilians sought refuge. These civilians were mostly of Tutsi background, and whilst seeking refuge at the communal, heinous acts continued to occur. For example, female refugees were exploited in the form of being ‘[…] regularly taken by armed local militia and/or communal police and were subjected to sexual violence […]’131. Further, women were also exploited to the extent as being forced to

experience multiple acts of sexual violence by several assailants. Not only were these women forced to endure the acts previously mentioned, but they also had to undergo serious threats of either death or severe physical harm or distress whilst being subjected to sexual

violence.132

The ICTR delivered a definition of sexual violence, against the contextual background

previously mentioned. The determined characterization was to regard sexual violence as ‘[…] any act of a sexual nature which is committed on a person under circumstances which are coercive’133.

However, the ICTR did not limit sexual violence to ‘[…] physical invasion of the human body […]’134_{. Rather, the ICTR determined that sexual violence may be comprised of acts} involving neither penetration nor any physical contact at all. The ICTR provided an example of this. In the present case, there was an incident described where Akayesu had ordered the local militia ‘[…] to undress a young girl named Chantal, whom he knew to be a gymnast, so that she could do gymnastics naked […]’135 in front of a crowd in a public yard. The ICTR declared that this example constituted as sexual violence, and further described its view upon the coercive prerequisite.

130_ibid. 131_{ibid [12A].} 132_ibid. 133_{ibid [688].} 134_ibid. 135_{ibid [429].}

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The ICTR thoroughly stated that coercion does not automatically mean involvement of any physical force. In this certain circumstance, the coercive prerequisite can be evidenced by simply stating that it is an ongoing armed conflict, and that coercion is a natural part of a conflict. For example, the de facto presence of a local militia amongst the refugee Tutsi women constituted as coercion. But for further clarification, the ICTR declared some examples of where coercive circumstances may come into play: in form of extortion, intimidation, threats and ‘[…] other forms of duress which prey on fear or desperation […]’136_.

Lastly, it is important to raise the ICTR’s final stance on the sexual violence term. As previously stated, the ICTR declared that the term sexual violence is to be viewed as broad, that the scope of it may include several different aspects, acts and even behaviours.

3.2.2 Prosecutor v. Vlastimir Đorđević

Between 1 January 1999 and 20 June 1999, forces of Serbia and of the Federal Republic of Yugoslavia (hereinafter referred to as the FRY) committed acts that resulted in the

deportation of roughly 800,000 Kosovo Albanian non-military persons. The acts consisted of,

inter alia, raiding villages and towns, burning down homes, and ruining Kosovo Albanian

artefacts symbolizing their culture and religion.137_{Furthermore, there were reports of}

systematic acts of sexual violence committed against Kosovo Albanian women.138 Vlastimir Đorđević was at this present time the Assistant Minister of the Ministry of Internal Affairs of Serbia, and Chief of the Public Security Department of Serbia.139

In the present case, the ICTY chose to apply and adopt the broader scope of defining sexual violence raised in the previously mentioned case. The ICTY stated that in acts of rape there must be a physical element in question, namely a penetration of some sorts, but similar to the case of Prosecutor v. Jean-Paul Akayesu, the ICTY chose to include acts not requiring penetration into the definition of sexual violence. As the ICTY described it,

‘The Chamber will interpret the term “sexual assault” as an offence that may include rape where there is evidence of sexual penetration […]. While the narrower offence of rape requires sexual penetration, sexual

violence other than rape can constitute “sexual assault”’140_.

In addition to this, the present case also raised the aspect regarding coercion, just like in the case of Prosecutor v. Jean-Paul Akayesu. The difference, however, is that the ICTR was more elaborate in its discussion regarding the criteria, as clear examples were presented, along with the inclusion of non-physical force constituting as coercion. In the present case, the ICTY gave a mere description that coercion may include ‘[…] threat of force or

intimidation in a way that is humiliating and degrading to the victim’s dignity’141

136_{ibid [688].}

137_{Prosecutor v. Vlastimir Đorđević (Judgment) IT-05-87/1-T (23 February 2011) [1].} 138_ibid.

139_{ibid [2].} 140_{ibid [1766].} 141_ibid.

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3.3 Crimes Related to Sexual Violence

With the definitions of sexual violence provided, the natural transition is now to discuss crimes related to sexual violence, and more specifically, the sexual violence crimes prosecuted by the ICTR and the ICTY.

As will be revealed below, the ICTR and the ICTY has, from the definitions previously mentioned, decided and ruled that acts of sexual violence may constitute as genocide or persecution.

3.3.1 Prosecutor v. Jean-Paul Akayesu

As previously stated, the ICTR chose to declare that the term sexual violence shall be viewed on broad terms, that acts of sexual violence may include acts that do not require any physical contact. A rather brave and controversial stance with regards to prosecuting acts of sexual violence, in light of the purpose of the ICTR, was taken. The ICTR chose to constitute acts of sexual violence as a form of genocide.

In order to determine whether acts of sexual violence constituted acts of genocide, the ICTR had to investigate the prerequisites for genocide. In accordance with paragraph 2 of Article 2 of the Statute of the ICTR, acts of genocide means for instance to cause serious physical or mental harm to members of a particular group, or to purposely inflict physical destruction to a particular group, ‘[…] with intent to destroy, in whole or in part, a national, ethnical, racial or religious group […]’142_.

The ICTR found that all the acts of sexual violence that had occurred had been exclusively directed to Tutsi women.143 One instance of sexual violence that has previously been mentioned, was the occurrence of the exploitation of Tutsi female refugees, who were subjected to sexual violence by the local militia and/or the communal police.144

The ICTR further stated that in line with the testimonies brought before it, for example the testimony with regards to the young girl named Chantal, it could be proven without a doubt that the acts of sexual violence had been committed to ‘[…] make Tutsi women suffer […], the intent being to destroy the Tutsi group while inflicting acute suffering on its members in the process’145_{. Subsequently, the ICTR determined that the sexual violence that occurred, in} fact, constituted ‘[…] the factual elements of the crime of genocide […]’146.

3.3.2 Prosecutor v. Miroslav Kvočka, Dragoljub Prcac, Milojica Kos, Milan Radi, and Zoran

Zigic

On 30 April 1992 in the Prijedor area in the north-eastern part of Bosnia Herzegovina, ‘[…] Serb forces conducted a bloodless takeover of the town of Prijedor and declared their

142_{UN Security Council, Statute of the International Criminal Tribunal for Rwanda (as last amended on 13} October 2006), 8 November 1994 art 2 [2].

144_{ibid [12A].} 145_{ibid [733].}

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intention to rename the territory to the ‘”Serb municipality of Prijedor”’147_{. This action led to} and meant that non-Serbs were so controlled that they could no longer go to their workplace, their children were no longer allowed to attend school and their movements were hindered or restricted. Additionally, propaganda against Croats and Muslims circulated and was

announced on the radio, and mosques and Catholic churches were targets meant to eliminate.148

Approximately one month after this event, the Serb forces heard rumours of an armed revolt by Muslims and Croats. Three camps were created in the plan to identify individuals involved in this uprising: the Omarska, Keraterm, and Trnopolje camps. The initial intention was to close down these camps after roughly two weeks. However, as the Serb forces won against the rebels, the camps were operating until the end of August.149

When the Omarska camp was established, Miroslav Kvočka and Milan Radi were policemen at the Omarska police station. Dragoljub Prcac was a retired policeman and a crime

technician, also working at the Omarska police station. However, Milojica Kos and Zoran Zigic were civilians ‘[…] mobilized to serve as reserve officers’150_.

Whereas the previously mentioned case was used as a tool for the ICTR to define sexual violence, the term was also used in the case at hand. The term sexual violence was, however, applied in a different manner than in the previously mentioned case. Here, the purpose of the term was to further describe acts of sexual violence, and to investigate whether sexual violence had taken place as a form of persecution.151

The crime of persecution can be found in paragraph (h) of Article 5 of the Statute of the ICTY, where acts of persecution are described as being based on either political, racial, or religious grounds, and are defined as a crime against humanity.

The Prosecution alleged that the accused had committed acts of sexual violence that was to be defined as persecution.152 The ICTY ruled that sexual violence would constitute

persecution if the acts were committed ‘[…] on discriminatory grounds’153. The

discriminatory grounds and the underlying mens rea154_{for persecution has therefore been} acknowledged by the ICTY and should thus be examined accordingly.

The ICTY made the statement that ‘Discrimination is the main feature that distinguishes the crime of persecution from other crimes against humanity’155_{, and added that acts of sexual} violence together with the requirement of discrimination qualifies as persecution.156 Further,

147_{Prosecutor v. Miroslav Kvočka, Dragoljub Prcac, Milojica Kos, Milan Radi and Zoran Zigic (Judgment)}

IT-98-30/1-T (2 November 2001) [1]. 148_ibid. 149_{ibid [2].} 150_{ibid [4].} 151_{ibid [119].} 152_{ibid [188].} 153_{ibid [189].}

154_{‘Mens rea’, Oxford English Dictionary (3rd edn, OED 2001) ‘The particular state of mind required to make}

an action criminal; a criminal state of mind; (more generally) criminal intent’.

IT-98-30/1-T (2 November 2001) [194].

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the ICTY made the statement that discrimination in this context is based on three grounds157_: racial, religious, or political, and, inter alia, ‘[…] includes the […], sexual assault and rape […] of Bosnian Muslims, Bosnian Croats, and other non-Serbs’158_.

The discrimination requirement was raised by the ICTY in the case of Prosecutor v. Duško Tadić, where it was found that ‘[…] the attack on the civilian population was conducted against only the non-Serb portion of the population because they were non-Serbs’159, and that this in fact proved a discriminatory ground.160

The ICTY adopted the discriminatory grounds from the case of Prosecutor v. Duško Tadić in the present case, stating that ‘[…] the detainees in Omarska camp were selected on the basis of political, ethnic, or religious criteria […]’161_{, and established that the fact that the detainees} were either non-Serbs or being suspected of sympathizing with non-Serbs, and the abusers were Serbs or Serb sympathizers was not insignificant in this case.162 The ICTY developed the argument of significance by stating that ‘[…] it is disingenuous to contend that religion, politics, and ethnicity did not define the group targeted for attack’163, and provided with an example.

For example, if a Bosnian Serb was targeted on suspicion of sympathizing with Bosnian Muslims, that attack could be classified as persecutory164

In addition to this example, the ICTY provided with another example.

[…] if a person was targeted for abuse because she was suspected of belonging to the Muslim group, the discrimination element is met even if the suspicion proves inaccurate165

In light of these mentioned examples, it was concluded in the present case that

[…] this Trial Chamber is satisfied that intentionally directing attacks exclusively against non-Serbs detained in Omarksa [sic] camp (or their sympathizers), on the basis of their being (or supporting)

non-Serbs, constitutes discrimination within the meaning of persecution166

And therefore, the ICTY ruled in the case at hand that since the alleged acts were committed against non-Serbs, the detainees were targeted on the basis of discriminatory grounds. The discriminatory ground was to be found as exclusion from being members of one special group; the Serb group167, and the ground for discrimination is thereby acknowledged as valid in accordance with the previously mentioned definition provided in the case of Prosecutor v.

Duško Tadić.

Since the ground for discrimination has been found valid, it is now time to discuss the discriminatory intent of persecution. The mens rea for persecution was thoroughly discussed

157_ibid. 158_{ibid [119].}

159_{Prosecutor v. Duško Tadić (Judgment) IT-94-1-T (7 May 1997) [652].}

160_ibid.

IT-98-30/1-T (2 November 2001) [195]. 162_ibid. 163_ibid. 164_ibid. 165_ibid. 166_{ibid [196].} 167_{ibid [197].}

Sexual Violence Against Women : The Legacies of the ad hoc Tribunals of Rwanda and of the Former Yugoslavia

J U R I D I C U M