¹ International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, UN Doc. S/25704, annex (1993), reprinted in 32 ILM 1192 (1993) [hereinafter Yugoslav Statute or ICTY Statute]; International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens responsible for genocide and other such violations committed in the territory of neighbouring States, between 1 January 1994 and 31 December 1994, SC Res. 955, annex, UN SCOR, 49th Sess., Res. & Dec, at 15, UN Doc. S/INF/50 (1994), reprinted in 33 ILM 1602 (1994) [hereinafter Rwandan Statute or ICTR Statute].

² Gender-based international crimes, aside from those under customary law or emerging jurisprudence, are included in the following acts committed against persons protected by the 1949 Geneva Conventions: “wilful killing; torture or inhuman treatment, including biological experiments; wilfully causing great suffering or serious injury to body or health”; and unlawful deportation, transfer or confinement of a civilian. See Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, Art. 147, 6 UST 3516, 75 UNTS 287 [hereinafter Fourth Geneva Convention].

³ Gender-based crimes in this category generally consist of violations of common Article 3 of the 1949 Geneva Conventions, which, in pertinent part, prohibits “violence to life and person, in particular … mutilation, cruel treatment and torture; outrages upon personal dignity, in particular humiliating and degrading treatment.” Common Article 3 has attained the status of customary international law, applicable to international or internal armed conflicts. See especially Prosecutor v. Tadić, Appeal on Jurisdiction, No. IT-94-1-AR72, para. 141 (Oct. 2, 1995). Article 27 of the Fourth Geneva Convention, supra note 2, requires that women be protected against rape and enforced prostitution. Customary law has prohibited rape crimes for centuries. See Theodor Meron, Rape as a Crime under International Humanitarian Law, 87 AJIL 424, 425 (1993).

⁴ As contained in the Genocide Convention and reproduced in the Tribunal Statutes, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) killing members of the group;

(b) causing serious bodily or mental harm to members of the group;

(c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) imposing measures intended to prevent births within the group;

(e) forcibly transferring children of the group to another group.

Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, Art. II, 78 UNTS 277.

⁵ A crime against humanity has never been defined in a treaty, and various statutes define it differendy. Generally, it is considered to consist of any of the following crimes committed as part of a widespread or systematic attack against a civilian population: murder, extermination, enslavement, deportation, imprisonment, torture, rape, persecution on political, racial or religious grounds, or other inhumane acts. Under the ICTY Statute, the crimes must be committed in connection with an armed conflict. Under the ICTR Statute, the attack must be committed on national, political, ethnic, racial or religious grounds.

⁶ Common Article 3 is the term used to designate the identical language of Article 3 of the four Geneva Conventions of August 12, 1949. Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, including Annex I, 6 UST 3114, 75 UNTS 31; Convention for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea, 6 UST 3217, 75 UNTS 85; Convention Relative to the Treatment of Prisoners of War, including Annexes I-V, 6 UST 3316, 75 UNTS 135; Fourth Geneva Convention, supra note 2, including Annexes I–III. Protocol II is the Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, June 8, 1977, 1125 UNTS 609. The ICTR Statute, supra note 1, in pertinent part, incorporates the following violations from common Article 3 and Additional Protocol II into Article 4: “violence to life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation[,] … [o]utrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault.”

⁷ In the past five years, women have made extraordinary advances in international humanitarian law in general, and in international humanitarian law bodies in particular. For a summary of particular women in positions of authority in public international law bodies or institutions, including the war crimes Tribunals, see Kelly Askin, Introduction to Volume I, in Women and International Human Rights Law (Kelly D. Askin & Dorean M. Koenig eds., forthcoming 1999).

⁸ For instance, it is highly unlikely that the Akayesu decision, infra note 22, which exemplifies a heightened awareness of crimes committed against women, would have demonstrated such gender sensitivity widiout South African Judge Navanethem Pillay’s participation in both the trial and the judgment.

⁹ The Tribunals have a common OTP, although each has a separate base—the prosecutor’s office of the Yugoslav Tribunal is based in The Hague (where the Tribunal is based) and the prosecutor’s office of the Rwandan Tribunal is based in Kigali (the Tribunal is based in Arusha). Patricia Viseur-Sellers is the legal officer for gender-based crimes for both Tribunals.

¹⁰ Determinations by the ICTY Trial Chamber II in the Furundžija case at one time threatened to undermine the rights of women and the ability to prosecute crimes committed against them. See briefs cited in note 86 infra.

¹¹ Rule 61 proceedings are used when an initial arrest warrant has not been executed and the accused has not been served. At the initiative of the judge who confirmed the indictment and signed the initial arrest warrant, the trial chamber convenes a hearing during which the prosecutor submits evidence against the accused. If the chamber determines there are reasonable grounds for believing that the crimes were committed as charged, it confirms the indictment and issues an international arrest warrant for the accused. See ICTY, Rules of Procedure and Evidence, Feb. 11, 1994, reprinted in 33 ILM 484 (1994), as revised and amendedjuly 9–10, 1998, UN Doc. IT/32/Rev.13 (1998); ICTR, Rules of Procedure and Evidence, June 29, 1995, UN Doc. ITR/3/Rev.1 (1995), as amendedjune 1–8, 1998 (5th rev.). For detailed discussion, see Mark Thieroff & Edward A. Amley, Jr., Proceeding to Justice and Accountability in the Balkans: The International Criminal Tribunal for the Former Yugoslavia and Rule 61, 23 Yale J. Int’L L. 231 (1998); Anne L. Quintal, Rule 61: The “Voice of the Victims” Screams Out for Justice, 36 Colum. J. Transnat’l L. 723 (1998).

¹² See ICTY at a glance (updated Oct. 5, 1998) (http://www.un.org/icty)[hereinafter ICTY Web site]. Many ICTY documents cited below can be found at that site.

¹³ These indictments are:

Tadić, No. IT-94-1 (Feb. 13, 1995), amended, No. IT-94-1-T (Sept. 1, 1995), amended, No. IT-94-1-T (Dec. 14, 1995) (sex crimes were added or charged differently in the three indictment versions; trial concluded; appeal pending)

Meakić and others, “Omarska Camp,” No. IT-95-4 (Feb. 13, 1995)

Sikirica and others, “Keraterm,” No. IT-95-8 (July 21, 1995)

Karadžić and Mladić, No. IT-95-5 (July 25, 1995)

Miljković and others, “Bosanski Šamac,” No. IT-95-9 (July 21, 1995)

Jelisić and Cesić, “Brčko,” No. IT-95-10 (July 21, 1995), amended, No. IT-95-10-PT (Mar. 3, 1998)

Delalić and others, “Celebići,” No. IT-96-21 (Mar. 21, 1996) (trial ongoing since Mar. 10, 1997)

Gagović and others, “Foča,” No. IT-96-23 (June 26, 1996) (this is the primary sexual violence indictment), amended, No. IT-96-23-I (July 13, 1998) (bringing solo charges against one of the accused, Kunarac)

Furundžija, “Lasva River valley” (Nov. 10, 1995), amended, No. IT-95-17/1-PT (June 2, 1998) (sealed indictment, redacted version)

The Kovačević and Drljaca indictment, No. IT-97-24 (Mar. 13, 1997), containing charges of sexual violence, will not be reviewed because the case is now officially closed (Kovačević died of a heart attack while in custody awaiting the resumption of his trial; Drljaca was killed during arrest). It had been anticipated that this would be the first trial before the ICTY in which the accused answered charges of individual responsibility and superior authority for complicity in genocide for crimes including sexual violence.

¹⁴ Whereas “sex” refers to biological differences between males and females, “gender” refers to socially constructed differences, taking into account such factors as power imbalances, socioeconomic disparities and culturally reinforced stereotypes. For the UN definition, see Report of the Secretary-General, Integrating the human rights of women throughout the United Nations system, UN Doc. E/CN.4/1997/40, para. 10 (1996).

¹⁵ Prosecutor v. Tadić, Opinion and Judgment, No. IT-94-1-T (May 7,1997) [hereinafter Tadić or Tadić trial chamber decision]; Prosecutor v. Furundžija, Judgement, No. IT-95-17/1-T (Dec. 10, 1998); Prosecutor v. Delalić, Judgement, No. IT-96-21-T (Nov. 16, 1998).

¹⁶ See especially Prosecutor v. Furundžija, Decision [on Defence Motion to Strike Testimony of Witness A], No. IT-95-17/1-T (July 16, 1998); and amicus briefs cited in note 86 infra.

¹⁷ Prosecutor v. Karadžić and Mladić, Review of the Indictment Pursuant to Rule 61, Nos. IT-95-5-R61, IT-95-18-R61 (July 11, 1996).

¹⁸ Prosecutor v. Nikolić, Review of the Indictment Pursuant to Rule 61, No. IT-94-2-R61 (Oct. 20, 1995).

¹⁹ See the Tribunal’s Web site (updated Aug. 8, 1998) (http://www.ictr.org)[hereinafter ICTR Web site].

²⁰ Akayesu, No. ICTR-96-4 (Feb. 13, 1996), amended, No. ICTR-96-4-I (June 17, 1997).

²¹ Nyiramasuhuko and Ntahobali, No. ICTR-97-21-I (May 26, 1997).

²² Prosecutor v. Akayesu, Judgement, No. ICTR-96-4-T (Sept. 2, 1998), available at ICTR Web site, supra note 19 [hereinafter Akayesu judgment or Akayesu trial chamber decision]. An appeal is pending.

²³ Many of the jurisdictional decisions have already been covered extensively in other works and are given only cursory mention here. The trial chamber and appeals chamber decisions on jurisdiction are reported in Prosecutor v. Tadić, Jurisdiction, No. IT-94-1-AR72 (Aug. 10, 1995); Prosecutor v. Tadić, Appeal on Jurisdiction, No. IT-94-1-AR72 (Oct. 2, 1995), reprinted in 35 ILM 32 (1996). See also Theodor Meron, The Continuing Role of Custom in the Formation of International Humanitarian Law, 90 AJIL 238 (1996); Geoffrey R. Watson, The Humanitarian Law of the Yugoslavia War Crimes Tribunal: Jurisdiction in Prosecutor v. Tadić, 36 Va. J. Int’l L. 687 (1996); George H. Aldrich, Jurisdiction of the International Criminal Tribunal for the Former Yugoslavia, 90 AJIL 64 (1996); Virginia Morris, Case note, Prosecutor v. Kanyabashi, 92 AJIL 66 (1998).

²⁴ No. IT-94-1-T (Dec. 14, 1995), supra note 13 [hereinafter referred to as the indictment].

²⁵ The person who made the paragraph 4.3 allegations against Tadic was subsequently found to be corrupted, so that testimony and charges alleging that Tadić had committed gang rape were withdrawn.

²⁶ In the original indictment, the sexual mutilation was charged under the various articles of the Statute as torture. See No. IT-94-1, supra note 13, paras. 5.23–5.25. The indictment also alleged that Harambasić had died as a result of the assaults, and this was charged as a grave breach (willful killing, Count 5), a violation of the laws or customs of war (murder, Count 6), or a crime against humanity (murder, Count 7).

²⁷ For an analysis of how previous international war crimes trials could have prosecuted gender-based crimes, including sex crimes, as independent crimes, see Kelly Dawn Askin, War Crimes Against Women: Prosecution in International War Crimes Tribunals 29, 163, 180, 202–03 (1997).

²⁸ Order on the Prosecution Motion to Withdraw Counts 2 through 4 of the Indictment without Prejudice, No. IT-94-1-T (May 15, 1996).

²⁹ See Michael P. Scharf, Balkan Justice: The Story Behind the First International War Crimes Trial Since Nuremberg 108, 167, 171–72, 199–200, 209, 211, 213 (1997).

³⁰ See Tadić trial chamber decision, supra note 15, paras. 33, 38, 40, 44, 452.

³¹ The author has elsewhere criticized the prevalent use in international humanitarian law of imprecise and inappropriate language as regards gender-based crimes, and urged the OTP and the Tribunal to end this practice of so referring to established or readily identifiable crimes and, instead, to use language that most accurately identifies the crime and its nature. See especially Askin, supra note 27, at 366–74; and Kelly D. Askin, Women & International Humanitarian Law, in 1 Women and International Human Rights Law, supra note 7. When sexual violence is committed, a charging of, e.g., “outrages upon personal dignity” or “humiliating and degrading treatment” not only mischaracterizes and obscures the nature of the crime, but also perpetuates destructive stereotypes by treating rape as a crime against dignity or honor, instead of a crime of physical, mental and sexual violence. Further, a conviction for a specific form of sexual violence could serve as some deterrent, while a conviction for, e.g., “inhuman treatment” is wholly useless as a deterrent, since the conduct being punished is termed vaguely, and the sexual nature of the crime is indeterminable.

³² See also Tadić, supra note 15, paras. 237, 242–44. According to testimony, Harambasic was alive after the assault and asked for water (para. 238). Thus, the trial chamber concluded that the OTP had failed to establish beyond a reasonable doubt that Harambasic died as a result of injuries received in this assault, as alleged in Counts 5, 6 and 7 (para. 241). The chamber also found the accused not guilty of grave breaches vis-à-vis Harambasić and others under Counts 5, 8 and 9 because the OTP had failed to prove that the victims were protected persons under the Geneva Conventions (para. 720).

³³ See id., para. 427, and Judgment, guilty verdict, Count 1.

³⁴ Perhaps because the indictment limited the charges of persecution to persecution on political, racial and/or religious grounds, under Article 5(h) of the ICTY Statute, the trial chamber did not venture into gender-based persecution. While the OTP is somewhat limited by the terms of the Statute, its silence concerning this issue is an example of the dangers resulting from past discriminatory treatment of women. Thus, women at the camp may have been subjected to rape on the basis of politics, race or religion, but most were simultaneously persecuted on the basis of gender, and the interrelationship of gender with these other factors should not be ignored. If gender were not a factor, grossly disproportionate instances of sexual violence would not be committed against women.

³⁵ Sexual or physical violence against a pregnant woman that causes a miscarriage should be prosecuted as an additional crime. See Askin, supra note 27, at 342 n.1071, 372, 399–400. At the Nuremberg trial, this treatment was appropriately labeled “criminal abortion.” 6 Trial of the Major War Criminals Before the International Military Tribunal, 14 Nov. 1945–1 Oct. 1946, at 170 (1947).

³⁶ Regarding the treatment of Harambasić and others, the trial chamber found, beyond a reasonable doubt, that Tadić perpetrated or intentionally assisted in the infliction of physical suffering on them and was therefore individually responsible for those crimes. Tadić, supra note 15, para. 726.

³⁷ In the judgment, Tadić was unanimously found guilty of Count 1.

³⁸ Patricia Viseur-Sellers notes:

The ruling’s effect is to recognise that non-physical perpetrators can be liable for sexual violence, under international criminal law, on a theory of aiding and abetting. Tadić’s liability is not based on imputation of a subordinate’s liability for sexual abuse, rather, it is direct, even though he is not the physical perpetrator nor is he in a position of superior authority. Mere presence does not suffice, yet a knowing presence, inferred even circumstantially, is actionable.

Patricia Viseur-Sellers, Emerging Jurisprudence of Sexual Violence under International Law, in Contemporary International Law Issues: New Forms, New Applications 140, 148 (Proceedings of the Fourth Hague Joint Conference, 1998).

³⁹ Tadić admits to having been part of a “police unit” (para. 525), although he was primarily involved as a traffic officer (paras. 526, 533). Still, the evidence portrays a man who was exceedingly violent and ruthless against former friends and enemies alike, one who was accorded deference by comrades. There is a clear assumption that he could have prevented violence had he been so inclined.

⁴⁰ The trial chamber specifically determined that this rule also applies outside the context of sexual assault testimony. Tadić, supra note 15, para. 536; see also para. 256.

⁴¹ The ICTR reached the same conclusion in Akayesu, supra note 22, paras. 132–36.

⁴² In contrast, the ICC statute includes persecution as one of 11 possible alternative elements of crimes against humanity. United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome Statute of the International Criminal Court, July 17, 1998, Art. 7(1), UN Doc. A/CONF.183/9*, reprinted in 37 ILM 999 (1998) [hereinafter ICC statute].

⁴³ Comment made at War Crimes Tribunals: The Record and the Prospects, conference at the Washington College of Law, American University (Mar. 31–Apr. 4, 1998).

⁴⁴ Although beyond the scope of this article (even though most of the ICTY indictments charge indictees with grave breaches for various rape crimes), it should be noted that a particularly troubling aspect of the decision is the majority’s controversial holding regarding grave breaches. For analyses, see Theodor Meron, Classification of Armed Conflict in the Former Yugoslavia: Nicaragua’s Fallout, 92 AJIL 236 (1998); Robert M. Hayden, Bosnia’s Internal War and the International Criminal Tribunal, Fletcher F. World Aff., Winter/Spring 1998, at 45; Dorothea Beane, After the Dusko Tadic War Crimes Trial: A Commentary on the Applicability of the Grave Breaches Provisions of the 1949 Geneva Conventions, 27 Stetson L. Rev. 589 (1997); Askin, supra note 31. Judge McDonald correctly and precisely dissented from this portion of the judgment.

⁴⁵ On women’s groups’ pressure on the OTP to amend the indictment to include sex crimes, see Tina Rosenberg, New Punishment for an Ancient War Crime, N.Y. Times, Apr. 5, 1998, §4, at 1. See also Amicus Brief regarding Rape in Rwanda, Respecting Amendment of the Indictment and Supplementation of the Evidence to Ensure the Prosecution of Rape and Other Sexual Violence Within the Competence of the Tribunal, Prosecutor v. Akayesu, No. ICTR-96-4-T (Sept. 2, 1998) (submitted by Joanna Birenbaum & Lisa Wyndels, Working Group on Engendering the Rwandan Criminal Tribunal; Rhonda Copelon, International Women’s Human Rights Law Clinic; and Jennifer Green, Center for Constitutional Rights) (on file with author). The OTP stated that a witness’s testimony at trial was the impetus for renewing its investigation of sexual violence at Taba and amending the indictment, and that the insufficiency of evidence to charge Akayesu with sexual violence in the original indictment likely stemmed from the stigma attached to rape and insensitivity to sexual violence in the investigation. See Akayesu judgment, supra note 22, §5.5, Factual Findings, Events Alleged, paras. 416–17.

⁴⁶ For a detailed news report on the Akayesu trial, and information about the woman who was the lead defense attorney, see Jeffrey Gettleman, Justice in Rwanda: a momentous task, St. Petersburg Times (Fla.), May 11, 1998, at 1A, available in 1998 WL 4261844.

⁴⁷ Supra note 20.

⁴⁸ Most of the information in this section was gathered from Ubutabera (Independent Newsletter on the International Criminal Tribunal for Rwanda, Arusha), Oct. 27, 1997.

⁴⁹ Id., Mar. 16, 1998.

⁵⁰ See Akayesu judgment, supra note 22, §5.5, Sexual Violence, paras. 416–60. There does not appear to be any evidence presented at trial alleging that sexual violence was committed against non-Tutsi women or any men in Taba. On October 2, 1998, Akayesu was given three life sentences, plus 80 years for other violations, including rape. See Rwandan Mayor Sentenced for Genocide: Jailed for Three Lifetimes, AP, Oct. 2, 1998, available in Africa News Online <http://www.africanews.org/east/rwanda> [hereinafter Africa News Online]. Both the OTP and Akayesu have appealed certain aspects of the judgment. The Jean-Paul Akayesu Case: Parties Appeal, Oct. 7, 1998, available in id. On May 1, 1998, Jean Kambanda pleaded guilty to charges including genocide, and the trial chamber accepted this plea. On September 4, 1998, two days after the Akayesu decision, Kambanda was sentenced to life imprisonment. Prosecutor v. Kambanda, No. ICTR 97-23-S (Sept. 4, 1998). This sentence is being appealed. Kambanda Insists Upon the Lawyer of His Choice, Oct. 14, 1998, available in Africa News Online.

⁵¹ “Forced marriage” was reportedly a common form of sexual slavery during the Rwandan conflict. See Human Rights Watch, Shattered Lives: Sexual Violence During the Rwandan Genocide and Its Aftermath 56–62 (1996). In certain Akayesu passages, however, it appears that at least on occasion men married women to assist in preventing them from being raped or killed. Akayesu judgment, supra note 22, para. 430.

⁵² Akayesu judgment, §5.5, Sexual Violence, para. 452.

⁵³ The trial chamber expressed incredulity that the defendant would so strongly deny the possibility that sexual violence might have occurred without his awareness of it. See id., §5.5, Sexual Violence, paras. 459–60; §1.4.2, The Accused’s line of defence, para. 32.

⁵⁴ Notice that the trial chamber decision states: “The aforesaid, however, is subject to the caveat that the crimes must not be committed by the perpetrator for purely personal motives” (para. 637). This is because genocide is a specific-intent crime. Consider the following testimony in Akayesu: “[T]wo other younger men, around the age of 15 or 16, came and asked [the young women] to ‘teach them because they didn’t know how it was done’. … [T]hese two men raped the girls …” (para. 431). Particularly when it comes to various forms of sexual violence, it is difficult to distinguish personal motives from political or military purposes.

⁵⁵ In The Law, Genocide, §6.3.1, when discussing the subparagraphs of the definition of genocide that may constitute gender-based genocide, the Akayesu judgment focuses primarily on subparagraph (d), imposing measures intended to prevent births within the group, as constituting various forms of gender-based violence (paras. 508–09). While each of the offenses in subparagraphs (a)–(e) could constitute gender-based violence, subparagraph (b), causing serious bodily or mental harm to members of the group, is most easily satisfied by genocidal rape and other forms of sexual violence and most supports the facts of the case. See Askin, supra note 27, at 337–44; Askin, supra note 31. The trial chamber stated that subparagraph (d), imposing measures intended to prevent births within the group,

should be construed as sexual mutilation, the practice of sterilization, forced birth control, separation of the sexes and prohibition of marriages. In patriarchal societies, where membership of a group is determined by the identity of the father, an example of a measure intended to prevent births within a group is the case where, during rape, a woman of the said group is deliberately impregnated by a man of another group, with the intent to have her give birth to a child who will consequently not belong to its mother’s group.

….

… [M]easures intended to prevent births within the group may be physical, but can also be mental. For instance, rape can be a measure intended to prevent births when the person raped refuses subsequently to procreate, in the same way that members of a group can be led, through threats or trauma, not to procreate. (Paras. 508–09)

While extremely useful, these dicta do not address much of the sexual violence described in the facts of the case, which could easily have been done in other paragraphs on genocide, particularly paragraphs 503–05 of the decision. This omission is finally redressed in the legal findings section, paragraphs 733–35, which refers somewhat erroneously back to section 6.3.1 as substantiating its legal findings.

⁵⁶ Akayesu judgment, §7.7, Count 13 (rape) and Count 14 (other inhumane acts), para. 692.

⁵⁷ However, neither enslavement (crime against humanity) nor enforced prostitution (violation of common Article 3 and Additional Protocol II) was included within the trial chamber’s attempt to characterize other justiciable crimes of sexual violence perpetrated in Rwanda.

⁵⁸ Akayesu judgment, §6.5, The class of perpetrators, paras. 631–35. This section of the judgment is not wholly persuasive. The trial chamber concluded that it was not adequately established that Akayesu had “actively support[ed] the war effort” (a condition it decided is a requirement for a common Article 3 penalty regarding civilians, para. 643), yet went on to find the accused guilty of such crimes as genocide and crimes against humanity (extermination, murder, torture, rape and other inhumane acts). See also paras. 695–96. The chamber suggested, however, that Akayesu could have been found guilty of violating common Article 3 had the charges been more adequately pleaded in the indictment (para. 635).

⁵⁹ Id., §6.4, Rape, paras. 597, 599. These crimes were defined in similar language in §7.7, Count 13 (rape) and Count 14 (other inhumane acts)—Crimes against humanity, para. 690 (stating that “[s]exual violence is not limited to physical invasion of the human body and may include acts which do not involve penetration or even physical contact,” and citing as an example the forcing of a woman to perform gymnastics naked in front of a crowd).

⁶⁰ Id., §6.4, Rape, para. 599.

⁶¹ Id., §6.4, Rape, para. 598; §7.7, Count 13 (rape) and Count 14 (other inhumane acts)—Crimes against humanity, para. 689.

⁶² ICC statute, supra note 42, Art. 7(2)(e).

⁶³ Statement by Justice Louise Arbour, Press Release, ICTY Doc. CC/PIU/342-E (Sept. 4, 1998), available at ICTY Web site, supra note 12. While the judgment is undoubtedly a powerful and important decision, in various places it is abundant in facts but short on law and reasoning to support its determinations.

⁶⁴ Rule 79 of the ICTY Rules of Procedure and Evidence, supra note 11, allows for closed sessions for all or part of the proceedings for reasons of public order or morality; safety, security or nondisclosure of the identity of a protected victim or witness; or to protect the interests of justice. The same rule is contained in Rule 79 of the ICTR Rules of Procedure and Evidence, id.

⁶⁵ Supra note 13.

⁶⁶ Charges were also brought against other unnamed persons. The crimes against them were unspecified owing to the redacted nature of the indictment, but according to the headings, many include allegations of sexual violence. Counts 9–17 allege torture and rape; Counts 18–25 allege torture, rape, and unlawful confinement; Counts 3–4 allege inhumane and cruel treatment; and Counts 5–8 allege torture and murder. Because the language is vague and the allegations redacted, it is unknown if Counts 3–8 contain charges of gender-based violence. Only 2 counts of the 30-count indictment concern Furundžija.

⁶⁷ A review of Furundžija trial transcript 980622, available at ICTY Web site, supra note 12, reveals contradictory statements as to whether or not Furundžija was present throughout the incident, which lasted several hours. Nevertheless, according to these transcripts, it seems indisputable that he was present during portions of the sexual violence and was certainly responsible as a superior for it.

⁶⁸ On March 13, 1998, Trial Chamber II-bis granted an order allowing the OTP to withdraw Count 12, grave breaches. As a result, on May 21, 1998, counsel for Furundžija filed a motion to dismiss Counts 13 and 14, arguing that torture and rape are not covered by Article 3 of the ICTY Statute, and thus that “Furundžija should be released from custody immediately.” Furundžija Case: Defendant’s Motion to Dismiss the Indictment and to Release the Accused, Press Release, ICTY Doc. CC/PIU/318-E (May 27, 1998). The OTP prevailed on all motions.

⁶⁹ Furundzija Trial: Accounts of Sexual Violence, Trib. Update, June 8–13, 1998; Furundzija trial: end already in sight, id., June 15–20, 1998; Furundzija trial: end after only eight working days, id., June 22–27, 1998, available at ICTY Web site, supra note 12. This was not the only sexual violence Witness A suffered; it is merely the only such incident for which Furundžija is charged with responsibility. Because of the redaction, charges against the actual perpetrator are not included in the public part of the indictment, but newspaper accounts assert that after raping her in front of Furundžija, Accused B locked Witness A “in a house where, for about two months, he and some fellow soldiers raped her again and again.” Marlise Simons, Landmark Bosnia Rape Trial: A Legal Morass, N.Y. Times, July 29, 1998, at A3.

⁷⁰ Under ICTY Rule 96(1) of the Rules of Procedure and Evidence, supra note 11, no corroboration of a sexual assault victim’s testimony is required. See notes 40–41 supra and corresponding text. In rape cases, particularly in domestic settings, there are seldom witnesses; during wartime situations, it is extremely unlikely that corroborative evidence, such as semen, blood, and other physical or medical evidence, will be available as supporting evidence.

⁷¹ See especially Elizabeth Loftus & Katherine Ketcham, Witness for the Defense (1991).

⁷² See generally id.; Elizabeth F. Loftus, Eyewitness Testimony (1981); Elizabeth F. Loftus & Katherine Ketcham, The Myth of Repressed Memory: False Memories and Allegations of Sexual Abuse (1996).

⁷³ Furundzija trial: end after only eight working days, supra note 69.

⁷⁴ Id.

⁷⁵ See Furundžija, Defendant’s Motion to Strike the Testimony of Witness A, No. IT-95-17/1-T (July 9, 1998) (asserting that the OTP had intentionally failed to disclose evidence of psychological condition and treatment that could affect witness’s ability to testify accurately about the crime committed against her); Furundžija, Prosecutor’s Response to Motion to Strike Testimony of Witness A, No. IT-95-17/1-T (July 13, 1998) (asserting that the documents did not in any way relate to the ability of Witness A to testify accurately, that there was no duty to disclose them as they revealed nothing that distinguished this case from any other rape case, and that the defense greatly exaggerated their significance) [hereinafter Prosecutor’s Response].

⁷⁶ See, e.g., Edna B. Foa, Treating the Trauma of Rape (1998); International Responses to Traumatic Stress: Humanitarian, Human Rights, Justice, Peace and Development Contributions, Collaborative Actions and Future Initiatives (Yael Danieli et al. eds., 1996); Judith Lewis Herman, Trauma and Recovery: The Aftermath of Violence—From Domestic Violence to Political Terror (1992).

⁷⁷ Prosecutor’s Response, supra note 75, at III(vii). The OTP had not been able to confirm the existence of the video tape. Because the trial chamber had previously filed a formal complaint regarding the OTP’s conduct, the defense cleverly seized the opportunity to allege misconduct against the OTP for failing to disclose the material. See Furundžija, Trial Chamber’s Formal Complaint to the Prosecutor, No. IT-95-17/1-PT (June 5, 1998).

⁷⁸ Decision, supra note 16, para. 18 (stating that it was “obvious” in pretrial proceedings and at trial that she had received “either counselling or treatment as a result of the events which she endured”). Neither the OTP nor the witness made efforts either to hide or to advertise this fact—seeking help to cope with the violence was simply treated as natural.

⁷⁹ Id.

⁸⁰ Decision, supra note 16, at IV, Disposition, A(1)–(2).

⁸¹ The “Material” is a redacted certificate and the witness statement, both dated 1995, referred to in text at note 75 supra. As mentioned, the Material was essentially the reason for reopening the trial.

⁸² Decision, supra note 16, at IV, Disposition, B(1).

⁸³ The trial chamber in Akayesu provides guidance on a similar issue:

[T]he onus is on the party pleading a case of false testimony to prove the falsehoods of the witness statements ….

….

… [T]estimony is based mainly on memory and sight, two human characteristics which often deceive the individual …. Hence, testimony is rarely exact as to the events experienced. To deduce from any resultant contradictions and inaccuracies that there was false testimony, would be akin to criminalising frailties in human perceptions.

Akayesu trial chamber decision, supra note 22, at 4, Evidentiary Matters, False testimony, paras. 139–40. When the defense challenged the credibility of rape victims on the basis of inconsistent testimony, the chamber stated that it had “considered the discrepancies which have been alleged with regard to the witnesses who testified on sexual violence and finds them to be unfounded or immaterial.” Id., §5.5, Sexual Violence, Factual findings, paras. 454–55.

⁸⁴ Furundžija, Prosecutor’s Response, supra note 75, para. 111(9)(ii).

⁸⁵ Furundžija, Defendant’s Motion to Strike the Testimony of Witness A, supra note 75.

⁸⁶ See Amicus Brief on Protective Measures for Victims or Witnesses of Sexual Violence and Other Traumatic Events, Submitted by the Center for Civil and Human Rights, Notre Dame Law School, Prosecutor v. Furundžija, No. IT-95-17/1-T (Dec. 10, 1998) (on file with author); Amicus Brief Submitted by Joanna Birenbaum and Valerie Oosterveld of the International Human Rights Programme, Faculty of Law, University of Toronto (Working Group on Engendering the Rwanda Criminal Tribunal), Furundžija, supra (on file with author).

⁸⁷ Furundžija, Defendant’s Request for Leave to Appeal and Proposed Appeal of Trial Chamber II’s Order, No. IT-95-17/1-AR73 (July 23,1998); Furundžija, Prosecutor’s Amended Response to the Defence Request for Leave to Appeal, No. IT-95-17/1-AR73 (Aug. 6, 1998); Furundžija, Reply Brief in Support of Defendant’s Proposed Appeal, No. IT-95-17/1-AR73 (Aug. 7, 1998).

⁸⁸ Furundžija, Decision on Defendant’s Request for Leave to Appeal, No. IT-95-17/1-AR73 (Aug. 24, 1998).

⁸⁹ Furundžija, supra note 15. Because the decision was handed down as this report was going to press, it can be given only brief notice here.

⁹⁰ Id. See especially paras. 179, 185.

⁹¹ See supra note 13.

⁹² While a camp guard also held a position of authority, the indictment brought charges in which Landzo was the subordinate of the other three indictees and did not charge him with crimes committed by persons under his authority. In a sensational turn of events, during the Celebići trial Landzo took the stand to testify that he had committed the crimes in an effort to be a “perfect soldier,” one who followed the orders of his superiors, particularly those of Mucić and Delić, without question. Landžo testified that while carrying out orders, he “forced two brothers to perform oral sex on each other. He then tied slow-burning fuses to their genitals, and then lit them.” Next, Delić took over, stating he would show Landžo “how to interrogate a Chetnik.” See Mirko Klarin, “Perfect Soldier” Confession, Trib. Update, July 27–Aug. 1, 1998, available at (http://www.ijt.org).

⁹³ Delalić, supra note 15. The judgment was handed down after this report was written. Both the timing and the great length of the judgment prevented its being given more than brief treatment here.

⁹⁴ Supra note 17.

⁹⁵ Supra note 18.

⁹⁶ A substantial amount of information contained in the following section was derived from the ICTY Web site, supra note 12, and from (http://www.igc.apc.org/wcw/icty).

⁹⁷ Supra note 13.

⁹⁸ The original indictment contained allegations against 19 accused. See War crimes court revokes indictments against 14 Bosnian Serbs, Agence France-Presse, May 8, 1998, available in 1998 WL 2277023.

⁹⁹ This indictment originally charged 14 Bosnian Serbs for alleged crimes. See id. For the indictment, see supra note 13.

¹⁰⁰ Supra note 13.

¹⁰¹ For the indictment, see supra note 13.

¹⁰² On August 7, 1998, Miljković was shot to death in the Serbian town of Kragujevac, reportedly by a police official. See Mirko Klarin, Death of a Fugitive, Trib. Update, Aug. 3–8, 1998, available at ICTY Web site, supra note 12.

¹⁰³ See supra note 13.

¹⁰⁴ Marlise Simons, For First Time, Court Defines Rape as War Crime, N.Y. Times, June 28, 1996, at 1 (quoting Christian Chartier).

¹⁰⁵ The Foča indictment, supra note 13, has since been amended to bring charges exclusively against Kunarac, as discussed infra.

¹⁰⁶ Gagović, supra note 13, para. 4.8. The language changed from “intercourse” in previous indictments to “penetration” in this indictment. “Forcible” is still present, which is better than “forced” but could still conceivably be interpreted as excluding coercion or intimidation. “Consent” is not a constituent element of the crime, so the burden is on the defense to prove consent, instead of on the prosecution to prove there was no consent. The indictment asserts that forcible sexual intercourse can be an “element of a crime against humanity (enslavement under Article 5(c), torture under Article 5(f), rape under Article 5(g)), violations of the laws and customs of war (torture under Article 3 and Article 3(1)(a) of the Geneva Conventions) and a grave breach of the Geneva Conventions (torture under Article 2(b)).” Id. Other subarticles are also applicable.

¹⁰⁷ If sexual violence is charged as genocide only in connection with other crimes of physical violence, an implied assumption may be that sexual violence alone does not amount to genocide. It is also important to recognize that reproductive crimes may be separate from and in addition to other crimes. There is no indication that any distinction was made in the charges regarding the woman who lost her ability to reproduce; yet reproductive crimes deserve additional treatment and charges. A similar argument can be made regarding victims who become pregnant, bear children or who lose an existing pregnancy as a result of rape. Diseases and other injuries should be considered aggravating factors. See generally Askin, supra note 27.

¹⁰⁸ It is unclear why Kovac was not additionally charged with violations of the laws or customs of war and with grave breaches here. Similarly to the previous charge of enslavement, this charge was brought for a situation where women were held for sexual pleasure or personal gratification, not for a military or political purpose. Manual labor may also be a condition that was considered.

¹⁰⁹ Many of the same factual allegations were asserted against Kunarac in the original Foča indictment, but the actual charges against him were erroneously limited to four counts (Counts 40–43).

¹¹⁰ On March 9, 1998, Kunarac pleaded guilty to rape as a crime against humanity. He pleaded not guilty to three other charges. Before the week was out, however, Kunarac’s guilty plea would be rejected by the Tribunal, saying he did not fully understand the gravity of the charge against him, which carries a maximum sentence of life imprisonment. Jacqueline Pietsch, Bosnian Serb rapist to appear before UN war crimes court, again, Agence France-Presse, Mar. 13, 1998, available in 1998 WL 2240666; War Crimes Panel Rejects Serb’s Plea, L.A. Times, Mar. 14, 1998, at A4; Indictment of torture upheld against Bosnian Serb war crimes suspect, Agence France-Presse, Mar. 13, 1998, available in 1998 WL 2240984. The Tribunal was reacting in part to the Erdemović debacle. After pleading guilty to crimes against humanity and being sentenced by the trial chamber to 10 years’ imprisonment, the accused appealed. On October 7, 1997, the appeals chamber ruled that Erdemović’s guilty plea was not fully informed, and that he should be given an opportunity to replead. On January 14, 1998, Erdemović pleaded guilty to war crimes. Because war crimes are not considered as onerous as crimes against humanity, on March 5, 1998, Trial Chamber II-ter sentenced Erdemović to five years’ imprisonment. Sec ICTY Web site, supra note 12. For additional discussion of Erdemović, see Sean D. Murphy, Progress and Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia, supra p. 57.

¹¹¹ See Gagović, as amended, supra note 13.

¹¹² The “trauma” language holds additional significance because the Kunarac case has been assigned to Trial Chamber II, consisting of the same judges as sat on the Furundžija case, discussed in text at notes 64–90. See Prosecutor v. Gagović, Order of the President Assigning a Case to a Trial Chamber (Mar. 5, 1998).

¹¹³ This elimination is a reaction to the Tadić appeals chamber decision on jurisdiction, supra note 3, para. 71, in which the majority ruled that grave breaches apply only to international armed conflicts and only when committed against persons or property protected by the Geneva Conventions. The Tadić judgment is up on appeal, and it is unfortunate that the OTP is conceding its loss before the appeals chamber rules on crucial aspects of the decision. For an excellent analysis and summary of the primary consequences of the jurisdictional decisions on grave breaches, see Gabrielle Kirk McDonald, The Eleventh Annual Waldemar A. Solf Lecture: The Changing Nature of the Laws of War, Mil. L. Rev., June 1998, at 30.

¹¹⁴ McDonald, supra note 113, at 34–35.

¹¹⁵ Supra note 21.

¹¹⁶ In a 1997 edition of Ubutabera, the headline states: Pauline Nyiramasuhuko is the First Woman Who Appeared Before an International Criminal Court. See Ubutabera (Independent Newsletter on the International Criminal Tribunal for Rwanda, Arusha), Sept. 8, 1997. She pleaded not guilty. It is not surprising that the first woman indicted for war crimes held a position of power within the government. It is nonetheless ironic and disturbing that this position of authority was as Minister of Women’s Development and Family Welfare.