Courtney Ginn, Ensuring the Effective Prosecution of Sexually Violent Crimes in the Bosnian War Crimes Chamber: Applying Lessons from the Icty

• Citation: Vol. 27 No. 1
• Publication year: 2010
• topic: Criminal Law

ENSURING THE EFFECTIVE PROSECUTION OF SEXUALLY VIOLENT CRIMES IN THE BOSNIAN WAR CRIMES CHAMBER: APPLYING LESSONS FROM THE ICTY

ABSTRACT

Despite the extensive use of sexual violence as a weapon in war throughout history, the International Criminal Tribunal for the former Yugoslavia was the first international tribunal to develop criminal jurisprudence concerning sexual violence. Although the ICTY expanded criminal liability for sexually violent acts committed during the Yugoslav Wars to an unprecedented extent, the conviction rate for sexually violent crimes was much lower than the conviction rate for other crime.

This Comment will explore the dissonance between the expansion of criminal liability for sexually violent crimes and the low conviction rate for these crimes. Cases, eyewitness reports, and interviews with ICTY prosecutors provide insight on the possible causes of this dissonance. This comment argues that the low conviction rate in the ICTY for sexually violent crimes is the result of several factors: (1) a lack of expertise in the Office of the Prosecutor, (2) gender bias (3) the reluctance of victims to testify, and (4) the lack of coordination between the Office of the Prosecutor and the Victim and Witnesses Unit.

Understanding the reasons behind the ICTY’s low conviction rate is especially important as the ICTY shifts its caseload to the national court system. Just because the Bosnian War Crimes Chamber is inheriting the ICTY’s cases does not mean the War Crimes Chamber must inherit the ICTY’s difficulties in prosecuting sexually violent crimes. Although the War Crimes Chamber will face many of the same difficulties—gender bias, lack of expertise, victim reluctance—the ICTY’s successes and failures in prosecuting sexually violent crimes can provide guidance. By applying the lessons learned in the ICTY, the War Crimes Chambers will be able to successfully prosecute sexually violent crimes.

INTRODUCTION 567

1. BACKGROUND 570

   1. History of the Yugoslav Wars 571

   2. Rape in the Yugoslav Wars 572

2. SEXUALLY VIOLENT CRIMES IN THE ICTY 574

3. THE INHERENT DIFFICULTY OF PROSECUTING SEXUALLY VIOLENT CRIMES 575

   1. Lack of Expertise in the Office of the Prosecutor 575

   2. Gender Bias in the Office of the Prosecutor 576

   3. Reluctant Witnesses 579

      1. Victims’ Privacy and the Fear of Reprisals 580

      2. The ICTY’s Statutory Protections for Victims 581

      3. Failure of the ICTY’s Victim Protections 583

   4. Lack of Coordination Between the Office of the Prosecutor

      and the Victims and Witnesses Unit 584

4. PROSECUTORIAL ERROR 585

   1. Prosecutorial Discretion and the Non-Inclusion of Rape Charges in Indictments 585

   2. Inconsistency Between Charges and Evidence 587

5. SHIFTING FROM AN INTERNATIONAL TRIBUNAL TO A NATIONAL JUDICIAL SYSTEM 589

   1. History of the War Crimes Chamber in the Court of Bosnia– Herzegovina 590

   2. Similarities Between the ICTY and WCC 591

6. USING LESSONS LEARNED FROM THE ICTY TO IMPROVE PROSECUTIONS FOR SEXUALLY VIOLENT CRIMES IN THE WAR CRIMES CHAMBERS 592

   1. Lack of Expertise in the WCC 592

   2. Prosecutorial Discretion in the WCC 594

   3. Victim and Witness Protections in the WCC 596

CONCLUSION 600

INTRODUCTION

“He forced me to take my clothes off. I didn’t want to take my clothes off. He slapped my face and told me to get undressed. I didn’t want to do this. Then he tried again and ripped everything off me. He ripped my knickers off me, and then he raped me. . . .[He] said that it was quite natural. ‘You’re not the only Muslim to be raped. Other Muslim women have been raped in other villages, and that is nothing terrible,’ and that I had no right to protect myself. And he said, ‘You’re going to bear Serb children, not Muslims any more,’ and

that there won’t be a single Muslim left . . . .”1

During periods of armed conflict, rape and other forms of sexual abuse are used as instruments of violence and terror. Military history is filled with reports of sexual violence directed against women.2 The systematic use of rape as a weapon has many purposes: to destroy communities, to force impregnation, and to drive out populations from a specific territory.3 Sexual violence’s ability to disintegrate communities makes it an especially potent tool of war.4

Until recently, despite the calculated use of sexual violence as a weapon of war, rape was not a crime that could be prosecuted under international law.5 Instead of a crime, sexual violence was simply seen as an unfortunate by- product of war.6 Historically, victims of sexual violence during conflict have had little legal recourse because rape was viewed as part of the “spoils of

1. Transcript of Record at 2639–40, Prosecutor v. Kunarac, Case No. IT-96-23-T & 23-1-T (Int’l Crim. Trib. for the Former Yugoslavia May 2, 2000).

2. Geoffrey Best, Restraints on War by Land Before 1945, in RESTRAINTS ON WAR: STUDIES IN THE

   LIMITATION OF ARMED CONFLICT 26 (Michael Howard ed., 1979) (“A free hand with the girls seems always to have been a basic component of what the common soldier hopes for, believes he deserves, and feels entitled [to receive] . . . .The literature of war is full of evidence of this disagreeable dark edge to military behavior.”).

3. SUSAN BROWNMILLER, AGAINST OUR WILL: MEN, WOMEN AND RAPE 16, 49, 53, 79–80 (1975).

4. See id. at 31–113.

5. Ariane Brunet & Stephanie Rousseau, Acknowledging Violations, Struggling against Impunity: Women’s Rights, Human Rights, in COMMON GROUNDS: VIOLENCE AGAINST WOMEN IN WAR AND ARMED

   CONFLICT SITUATIONS 33 (Indai Lourdes Sajor ed., Peter Feldstein trans., 1998) [hereinafter COMMON GROUNDS].

6. See Special Rapporteur on Violence Against Women, Its Causes and Consequences, Integration of the

   Human Rights of Women and the Gender Perspective: Violence Against Women: Violence Against Women Perpetrated and/or Condoned by the State During Times of Armed Conflict (1997–2000), Comm’n on Human Rights, U.N. Doc. E/CN.4/2001/73, para. 23 (Jan. 23, 2001) (by Radhika Coomaraswamy) (explaining how the ICTY chose to prosecute rape as a crime against humanity “[i]nstead of falling back on the often heard claim that rape is a random or arbitrary act perpetrated by soldiers in search of an outlet for sexual energy . . . .”).

   
   

   war.”7 Sexual violence was viewed as an assault on a woman’s honor—a private affair that should be kept out of the realm of the international legal system.8

   
   

   This view began to shift in the 1990s, when there was recognition that sexually violent crimes must be tried at an international level to begin the healing process for the victims.9 The international community also discovered that allowing impunity for sexually violent crimes undermines community- building in post-conflict societies.10 Rape is now a crime under international law, although “it remains the least condemned war crime.”11

   
   

   The 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 (“ICTY”) has played a leading role in developing the jurisprudence of sexually violent crimes. The judgments of the ICTY have greatly expanded the articulation of sexually violent crimes

   during armed conflict.12 Scholars generally agree that the ICTY’s progressive

   
   

7. Comm’n on Human Rights, Sub-Comm’n on the Promotion and Prot. of Human Rights, Contemporary Forms of Slavery: Systematic Rape, Sexual Slavery and Slavery-Like Practices During Armed Conflict, July 31–Aug. 18, 2000, para. 20, U.N. Doc. E/CN.4/Sub.2/2000/21 (June 6, 2000) [hereinafter Contemporary Forms of Slavery]; see also Mary Robinson, Message from the UN High Commissioner for Human Rights, in COMMON GROUNDS, supra note 5, at 21 (“The official failure to condemn or punish rape, giving it overt political sanction, allows for rape and other forms of sexual torture and ill-treatment to become tools of military strategy.”).

8. Special Rapporteur on Violence Against Women, Its Causes and Consequences, Further Promotion

   and Encouragement of Human Rights and Fundamental Freedoms, Including the Question of the Programme and Methods of Work of the Commission: Alternative Approaches and Ways and Means Within the United Nations System for Improving the Effective Enjoyment of Human Rights and Fundamental Freedoms, para. 11,

   U.N. Doc. E/CN.4/1998/54 (Jan. 26, 1998) (by Radhika Coomaraswamy) (“By using the honour paradigm, linked as it is to concepts of chastity, purity and virginity, stereotypical concepts of femininity have been formally enshrined in humanitarian law . . . . When rape is perceived as a crime against honour or morality, shame commonly ensues for the victim, who is often viewed by the community as ‘dirty’ or ‘spoiled’. Consequently, many women will neither report nor discuss the violence that has been perpetrated against them.”); see also Radhika Coomaraswamy, Message from the UN Special Rapporteur on Violence Against Women, in COMMON GROUNDS, supra note 5, at 24–25.

9. See Contemporary Forms of Slavery, supra note 7, para. 91 at 22. Article 1 of the Declaration on the

   Elimination of Violence Against Women defines “violence against women” as “any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.” G.A. Res. 48/104, art. 1, UN Doc. A/RES/48/104 (Feb. 23, 1994).

10. See Contemporary Forms of Slavery, supra note 7, para. 89 at 21–22; see also COUNCIL OF EUR.

    COMM’R FOR HUMAN RIGHTS, POST-WAR JUSTICE AND DURABLE PEACE IN THE FORMER YUGOSLAVIA 25–26

    (2012) (detailing the damage to community-building continuing caused by impunity for the rapists).

11. Brunet & Rousseau, supra note 5, at 37.

12. The ICTY has prosecuted rape as a war crime, a crime against humanity. See, e.g., Prosecutor v. Kunarac, Case No. IT-96-23-T & 23/1-T, Judgement, para. 4 (Int’l Crim. Trib. for the Former Yugoslavia June

    jurisprudence on sexual violence during armed conflict has been a significant victory.13

    
    

    Unfortunately, scholars celebrating this victory have...