The prosecution of rape under international law: justice that is long overdue.

• Author: McHenry, James R., III
• Position: International Criminal Tribunal for the Former Yugoslavia

ABSTRACT

This Note argues that despite theoretical criticisms, the prosecution of rape and sexual enslavement as crimes against humanity by the International Criminal Tribunal for the former Yugoslavia (ICTY) fits within a larger, emerging picture of international legal jurisprudence. First, the ICTY built upon both its own prior decisions and the decisions of the International Criminal Tribunal for Rwanda (ICTR), especially Prosecutor v. Akayesu, in order to close gaps in the international legal conceptualizations of rape and enslavement, torture, war crimes, genocide and crimes against humanity. Second, building upon the example set by the ICTR, the ICTY broadened international protections of civilians of either gender, especially civilians of different ethnicities, from even unsystematic acts of depravity. Third, it fully codified women as legally equal to men in the human community, but it did not unfairly single women out as a weaker gender in need of special protections, nor did it establish a victimology for women in rape cases. In other words, it brought women within the purview of humanity for purposes of prosecuting crimes against humanity. Finally, it established an historic foundation for the prosecution of crimes against humanity by other courts and in other locations, but did not infringe upon the sovereignty of either a state or an individual.

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According to a 1996 indictment by prosecutors at the International Criminal Tribunal for the former Yugoslavia (ICTY), eight Bosnian Serb police and military officers raped and sexually assaulted fourteen Bosnian Muslim women in the town of Foca, a bucolic village in southeastern Bosnia-Herzegovina. (1) The eight officers, all men, detained and enslaved the women in houses and apartments that they maintained as brothels for paramilitary troops. (2) All of the women, including some girls as young as twelve years old, were subjected to "almost constant rape, sexual assault, and torture." (3) The impact of these attacks was both psychologically and physically devastating:

The physical and psychological health of many female detainees seriously deteriorated as a result of these sexual assaults. Some of the women endured complete exhaustion [and serious gynecological harm].... Some of the sexually abused women became suicidal. Others became indifferent as to what would happen to them and suffered from depression.... All the women who were sexually assaulted suffered psychological and emotional harm; some remain traumatized. (4) The attacks on the Muslin women of Foca were part of a broader campaign of ethnic cleansing by Bosnian Serbs to reduce the non-Serb population in Serbian-claimed regions of Bosnia-Herzegovina. (5) To effectuate this policy, the Bosnian Serb leaders in charge of Foca murdered most of the non-Serb men in the town and sent the survivors to concentration camps. (6) The women, however, were not killed immediately; rather, they were sent to rape camps like the one described in the ICTY's indictment where they were forced to perform sexual services for the Bosnian Serb soldiers. (7) Many of the women were gang-raped and forced to live in a condition of sexual slavery. (8) Two women were even sold as chattel for DM 500 each. (9) Put simply, these actions were "calculated, cynical, and subhuman," yet they were also grimly effective. (10) Before 1992, Foca's population of approximately forty thousand was almost evenly divided between Muslim and Serb ethnic groups. (11) As of 2002, however, Foca's population is approximately twenty-four thousand, and fewer than one hundred non-Serbs live within its borders. (12)

What happened in Foca is almost unthinkable, yet a similar series of events occurred in Rwanda two years later. (13) Jean-Paul Akayesu, an ethnic Hutu and the mayor of Taba, a small Rwandan village, knowingly allowed the mass rape of hundreds of Tutsi women in 1994, even though as mayor he controlled the police and could have prevented the attacks. (14) Indeed, when Tutsi women sought refuge at the village's communal center,

[they] were regularly taken by armed local militia and/or communal police and subjected to sexual violence, and/or beaten on or near the bureau communal premises.... Many women were forced to endure multiple acts of sexual violence which were at times committed by more than one assailant. These acts of sexual violence were generally accompanied by explicit threats of death or bodily harm. (15) In 1998, the Trial Chamber of the International Criminal Tribunal for Rwanda (ICTR) convicted Akayesu of genocide and crimes against humanity for his encouragement of the rape of Tutsi women in Rwanda, and the Appeals Chamber upheld that conviction in 2001. (16) Akayesu's conviction was historic because it was the first time in history that a defendant was tried and convicted by an international tribunal for genocide. (17) Moreover, Akayesu's conviction paved the way for later prosecutions of sexual crimes by international tribunals, including the recent trial of some of the perpetrators of the events in Foca. (18) Indeed, as Prosecutor Louise Arbour noted,

[t]he judgment [in Akayesu] is truly remarkable in its breadth and vision, as well as in the detailed legal analysis on many issues that will be critical to the future of both ICTR and ICTY, in particular with respect to the law of sexual violence. The Court showed great sensitivity to the difficulties of bringing forward the victims who are required to reveal, often in public, the shocking indignities to which they were subjected. (19) Although Akayesu generally was hailed as an historic judgment, it was also criticized for being "abundant in facts but short on law and reasoning to support its determinations." (20) Consequently, its conclusions about rape in international law were only tentative. However, the Akayesu case represented an important first step in the consideration of crimes involving rape under international law, and it laid a foundation upon which subsequent decisions by the ICTY, including the prosecution of the atrocities in Foca, were built.

The events in Foca marked the second attempt at ethnic cleansing in Europe within the past fifty years and the first of two significant worldwide attempts in the 1990s. (21) Although murder and genocide were significant elements of the ethnic cleansing campaign in the former Yugoslavia, just as they were in Rwanda, the actions in Foca also involved a targeted campaign of gruesome dehumanization--actualized as the rape and sexual enslavement of approximately twenty thousand women--on a scale of inhumanity that is unique in modern times. (22)

On February 22, 2001, nine years after the Bosnian Serb soldiers came to Foca, Trial Chamber II of the ICTY found three Bosnian Serb soldiers--Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic--guilty of committing crimes against humanity including torture and rape. (23) Human rights organizations worldwide immediately hailed the verdict in Prosecutor v. Kunarac because wartime rape campaigns were unequivocally defined as both a crime against humanity and a war crime. (24) Furthermore, it expanded the definition of slavery as a crime against humanity to include sexual slavery; previously, forced labor was the only type of slavery to be viewed as a crime against humanity. (25)

The full impact of this decision, like its legal cousin Prosecutor v. Akayesu, may not be felt for many years as other warring groups must bear it in mind when contemplating committing similar acts; indeed, Kunarac and Akayesu may signal the eventual end of campaigns of sexual ethnic cleansing by warring parties. (26) Despite their potential to reshape international law and norms of international warfare, the Kunarac and Akayesu decisions are not uncontroversial. Both cases raise troubling issues about the international community's judgment of state and individual sovereignty as well as the questionableness of criminalizing behavior after it has occurred. (27) Moreover, the decisions also raise a question about the community's underlying views of women as rape victims--views that some may argue inappropriately portray women simply as weak and defenseless individuals. (28) In fact, just as the promulgation of the battered women's syndrome defense sparked controversy in U.S. legal circles over its possible underlying views of women, so too may these decisions raise questions in international legal circles regarding whether women should have a unique identity or a role as victims in crimes against humanity. (29)

Despite these criticisms, this Note argues that the expansion of the definition of crimes against humanity in Kunarac and the application of war crimes' standards to acts of rape and sexual enslavement were warranted for several reasons. First, by building upon the Akayesu decision, the expansion closed holes in the international legal conceptualizations of rape and enslavement, torture, war crimes, genocide, and crimes against humanity, and it brought prosecution of sexual crimes against women to the forefront of international law. (30) Second, it broadened the enforcement of international protections of civilians, especially those of different ethnicities, from even unsystematic acts of depravity during an armed conflict. (31) Third, it explicitly recognized women as equal to men in the human community, but did not identify women as a weaker gender in need of protection. (32) Fourth, it established an historic foundation for the prosecution of sexually-related crimes by other international courts and, in doing so, did not violate the sovereignty of either the state or the individuals who were culpable for these crimes. (33)

Because the ICTR and the Akayesu decision have been analyzed in some detail already, this Note will focus primarily on the implications of the Kunarac decision. However, the Akayesu decision should be kept in mind as the legal and intellectual progenitor of...