As early as 1992, the world had become aware of and alarmed by the sexual violence being committed in Bosnia and Herzegovina and Croatia, and sought to establish a tribunal that would bring perpetrators to justice.
While certain precedents for prosecuting wartime sexual violence under international criminal law existed prior to the war in the Former Yugoslavia, the ICTY was a gamechanger for trying this category of crimes. The first time sexual violence was addressed in international jurisprudence was in 1907 with the Hague Convention, which only implicitly condemned rape by establishing that “family and honour rights” needed to “be respected”. However, the Convention did not end impunity for conflict-related sexual violence as this crime was not prosecuted for a long time after. For instance, Japan’s “comfort women” never saw their abusers held accountable by the Tokyo Trials, and Nazi soldiers were not tried for rape at Nuremberg (Domi & Karcic, 2022). In 1945, Article 2 of the Control Council Law No. 10 recognised rape “or other inhumane acts committed against any civilian population” as a crime against humanity, and the 1949 Geneva Convention went a step further by stating that women must be protected “against rape, enforced prostitution, or any form of indecent assault” (ICRC, 1949). However, it was not until half a century later that survivors of Conflict-Related Sexual Violence (CRSV) managed to take their perpetrators to trial (Khan, 2018).
Tanya Domi, professor at Columbia University and President of the Post Conflict Research Center advisory board, and Hikmet Karčić, author of Torture, Humiliate, Kill: Inside the Bosnian Serb Camp System, wrote in a March 2022 Foreign Policy article: “Most of the groundbreaking international jurisprudence on sexual violence has been generated by ad-hoc tribunals” (Domi & Karcic, 2022). Since its inception, the ICTY enacted a number of landmark jurisprudence necessary for sexual violence to be prosecuted “as a war crime, crime against humanity and genocide,” and for the first time, wartime rape of civilians was understood as a tool of war rather than mere ‘reckless’ behaviour by soldiers and asystematic occurrences (ICTY, “Landmark Cases”). Specifically, here is an outline of the landmark jurisprudence achieved by the ICTY trials:
- Recognition of CRSV against men
The ICTY’s first trial, against former Bosnian Serb politician Duško Tadić, was the first-ever trial for sexual violence against men (ICTY, “Landmark Cases”). Prior to the Tribunal’s work, mentions of rape in conventions and treaties regarded rape as a crime to which only women could fall victim.
By qualifying forced oral sex between two or more victims as rape, the ICTY set the stage for male victims of CRSV to be recognised. This was especially important since the OSCE found that most CRSV against men took the form of forced sexual interactions between two male victims (Organization for Security and Co-operation in Europe Mission to Bosnia and Herzegovina, 2017).
Thus, the ICTY adopted the principle that rape constitutes a war crime regardless of whom it is inflicted upon, serving towards the future protection of a broader range of people.
- Widening the scope of CRSV in court
In 1998, Anto Furundžija was the first time someone was tried entirely on sexual violence charges (ICTY, 1998). The case widened the scope of the ICTY’s statute, which had originally only referred to rape as a crime against humanity, by establishing that the crime may also be prosecuted as a breach of the Geneva Conventions and as a violation of the laws and customs of war. That same year, the trial of Hazim Delić (as part of the Mucić case) set a vital precedent in international criminal law by recognizing rape as a form of torture (ICTY, “Landmark Cases”).
The Kunarac case, the second ICTY trial based solely on charges of sexual violence, went so far as to widen the scope of what could constitute enslavement as a crime against humanity by determining that the defendants were responsible for sexual enslavement (ICTY, 2001). Thus, although the ICTY never formally recognised sexual enslavement in its Statute, its proceedings set a precedent for future institutions, such as the Special Court for Sierra Leone (SCSL) and Court of BiH, to recognise sexual slavery as a crime against humanity (Organization for Security and Co-operation in Europe Mission to Bosnia and Herzegovina, 2014).
- Recognition of rape as a tool of genocide and “ethnic cleansing”
One of the most important milestones the Tribunal set in regards to the prosecution of these crimes was in 1998, when it confirmed that rape can be used as a tool of genocide by armed forces (ICTY, “Landmark Cases”). While it was Rwanda’s ICTR that rendered the first judgement stating that rape constitutes genocide under international law, the ICTY and ICTR operated in parallel with one another. That is to say, their case laws largely overlapped, and their proceedings influenced each other (T.M.C. Asser Instituut, The Prosecutor v. Jean-Paul Akayesu).
In Krstić, the ICTY’s Trial Chamber established that a link existed between rape and efforts to ‘ethnically cleanse’ an area, after the Bosnian Serb Army Drina Corps committed rape in Srebrenica (ICTY, 2001). The case also held that sexual violence was a foreseeable consequence of war, and thus should not be treated as a mere by-product of conflict. This set a precedent for CRSV to be treated as a crime for which military superiors hold responsibility, rather than the result of inevitable reckless behavior by soldiers and civilians who take advantage of the situation at hand (UN Women, 2011).
- Legally defining “rape”
The Akayeso case, conducted by the ICTR, was the first time an international criminal tribunal defined rape. The definition it set forth was intentionally left extremely broad (“a physical invasion of a sexual nature, committed on a person under circumstances which are coercive”), and also lacked any reference to consent (ICTR, 1998). ICTY’s case Čelebići used the Akayesu definition of the crime, but in the later Furundžija trial, the Tribunal formed its own definition of rape. However, this definition still lacked a reference to consent, only going so far as to establish that rape happens “by coercion or force or threat of force against the victim or a third person” (ICTY, 1998). It was later, in Kunarac’s case, that the Trial Chamber reformulated the definition to explicitly mention consent, or lack thereof (ICTY, 2001). This set a precedent for future courts to recognize that there does not necessarily have to be coercion, force, or the threat of force for it to be proven that consent was lacking.
The forming of definitions for rape shone light on a particular problem the ICTY faced. On the one hand, its mandate ordered that it adhere exclusively to international customary law, thus having to rely on any widely accepted, previous definitions of the crimes it prosecuted (Coan, 2000). At the same time, no such definition of rape existed, thus leaving the ICTY with no choice but to dabble in this gray area and formulate its own definition in order to try and sentence perpetrators. Through this legislative-like role, the ICTY was able to set precedents, which other international courts and tribunals, such as the Inter-American Commission on Human Rights, have cited when trying rape (Coan, 2000).
- Delegitimization of consent as a defense
The ICTY also established precedents for what can and cannot be used as evidence in CRSV trials. As well as establishing under which circumstances the prosecution can and cannot use evidence of consent by the survivor, Rule 96 established exactly how the prosecution could prove non-consent (by “proving the existence of coercive circumstances under which meaningful consent is not possible”) (ICTY, “Innovative Procedures”). Alleged perpetrators of CRSV were thus limited in using the defence of there having been consent (as the existence of armed conflict inherently creates coercive circumstances, rendering consent impossible). In the context of the war in Bosnia, an ongoing armed conflict or genocidal campaign essentially counts as a coercive circumstance, and so the Chamber could easily infer the lack of consent on the victim’s part.
- Influencing the codification of the Rome Statute
The ICTY held significant influence on the 1998 codification of sexual violence in the Rome Statute and the subsequent establishment of the International Criminal Court. For instance, the 1998 Rome Statute built upon the definitions of rape established by the Tribunal in Furundžija and Kunarac.
The influence of ICTY jurisprudence on international criminal law becomes further apparent in the Krstić case’s finding that rape can be committed with persecutorial intent. However, the ICTY did not include gender as a ground for persecution, and thus required for prosecutors in future cases to prove that a non-gender based nexus existed between rape and another persecutorial act (Edman, 2008). The complications arising and lessons learned from this may have played a role in the way the subsequent Rome Statute and Criminal Code of BiH explicitly recognised gender as a basis of persecution (Edman, 2008).
- Setting standards for witness protection and wellbeing
Rule 96 of the ICTY’s Rules of Procedure and Evidence addressed the trauma that survivors of CRSV may experience in court, establishing that it is not necessary for a victim of sexual violence to corroborate their testimony, and that the victim’s sexual history cannot be admitted as evidence by the defence (ICTY, “Innovative Procedures”). Another landmark precedent established by Rule 96 comes in its setting of standards for the protection of witnesses, especially survivors of CRSV. For example, the Rule allowed victims to sit behind screens or even in an entirely different room while testifying (to preserve their anonymity and to avoid having to see their aggressor) (ICTY, “Innovative Procedures”).
ICTY legacy profoundly relevant today
The legacy of the ICTY, specifically for the prosecution of wartime sexual violence under international criminal law, was monumental. The Furundžija finding that a single occurrence of rape can indeed be a crime against humanity when considered in the context of a widespread attack on a population was echoed a decade later with the landmark Security Council Resolution 1820 (2008). Resolution 1820 built on the notion that sexual violence can amount to “a war crime, a crime against humanity, or a constitutive act with respect to genocide” (United Nations Security Council, 2008). The judicial precedents set by the Tribunal are still profoundly relevant today, as CRSV persists across the world (Stark et al., 2022).
When it comes to Bosnia and Herzegovina, the legal precedents and standards established by the ICTY, as well as the relationship with the Court of Bosnia and Herzegovina, demonstrate the crucial role of domestic and international institutions in building reconciliation. This is even more evident concerning justice for victims of sexual violence, particularly when prosecutions have continued at the local level, i.e., when cases have been transferred from The Hague to local jurisdiction.
