Chapter 5 - Future Challenges to Prosecuting Sexual Violence Under International Law: Insights from ICTY Practice

Summary

INTRODUCTION

When the International Criminal Tribunal for the Former Yugoslavia (ICTY) was established in 1993, there were signs of the international community's determination to open a new chapter in the treatment of war-time sexual violence and to leave behind the inadequacies of past approaches. The Security Council singled rape out as one of the particularly reprehensible crimes committed during the conflicts in the former Yugoslavia and expressed its commitment to establishing accountability for these crimes as a core part of the ICTY's mandate. Rape was specifically mentioned in the ICTY Statute as a crime against humanity and, from early on, the Rules of Procedure and Evidence contained provisions to ensure sensitive approaches to evidence in sexual violence cases. A Victims and Witnesses Section was also established to provide support for victims appearing before the Tribunal, “in particular in cases of rape and sexual assault.”

Nevertheless, those who were familiar with the historical silences surrounding war-time sexual violence watched vigilantly and with some trepidation as the ICTY spread its fledgling wings. Even with the best of intentions, it would be difficult to dismantle centuries of inaction concerning war-time sexual violence and to travel a new more visionary path.

Part of the difficulty historically has been conceptions of rape and other sexual violence crimes as sexual acts – rather than violent acts – that are personal in nature and separate from the main activity of war. For example, these mischaracterisations are visible in key international humanitarian law treaty provisions. Article 27(2) of the Fourth Geneva Convention states that “[w]omen shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault.” The ICRC Commentary to this provision states that these acts are incompatible with the honour, modesty and dignity of women. Additional Protocols I and II perpetuate the perception that rape and other sexual assaults are outrages upon personal dignity rather than violent crimes.

These mischaracterisations reflect the historical failure to recognise the gravity of sexual violence crimes. For example, rape and sexual assaults were not expressly listed among the grave breaches in the Geneva Conventions and Additional Protocol I, which set out the most fundamental provisions of the international humanitarian law regime.