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Commanding Rape: Sexual Violence, CommandResponsibility, and the Prosecution of Superiors bythe International Criminal Tribunals for the FormerYugoslavia and Rwanda

Published online by Cambridge University Press:  09 March 2016

Nicole LaViolette
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Summary

Evidence indicates that individuals responsible formass rapes in the former Yugoslavia and Rwanda wereacting on orders from their superiors. Theinternational criminal tribunals for the formerYugoslavia and for Rwanda have indicated theirintention to prosecute individuals responsible forsexual violence and their superiors. The prosecutionof superiors rests on the doctrine of commandresponsibility — a doctrine Well-established ininternational criminal law. This article presentsthe difficulties that arise in applying the doctrineof command responsibility to cases of wartime sexualassaults. Relying on a feminist analysis ofinternational humanitarian law, the authoridentifies the imbalance that exists between theprinciple of military necessity and the principle ofhumanitarianism — an imbalance that makes rape theleast condemned and punished of war crimes. In theabsence of traditional military command structures,as was the case in Bosnia and Rwanda, a superior iswell-placed to deny his authority over those whocommitted wartime rapes. Despite this challenge, theauthor asserts that the Tribunal for the formerYugoslavia, in the Celebici case, developed arealistic approach to the doctrine of commandresponsibility and reasonably concluded that a campcommander was criminally responsible for rapescommitted by his subordinates.

Sommaire

Sommaire

Il y a lieu de croire que les responsables de violsmassifs en ex-Yougoslavie et au Rwanda exécutaientles ordres de leurs supérieurs. Le Tribunal pénalinternational pour l'ex-Yougoslavie et celui pour leRwanda ont indiqué leur intention de poursuivre lesindividus qui ont commis les agressions sexuellesainsi que leurs supérieurs. Les poursuites intentéescontre les supérieurs se fondent sur le principe dela responsabilité pénale individuelle des supérieurshiérarchiques, un principe depuis longtemps admis endroit international pénal. Le présent articlesouligne les difficultés que présente l'applicationde ce principe aux cas d'agressions sexuelles entemps de guerre. En se fondant sur une analysethéorique féministe du droit internationalhumanitaire, l'auteur met en lumière le déséquilibrequi existe entre le principe de la nécessitémilitaire et le principe d'humanité, un déséquilibrequi rend le viol un des crimes de guerre le moinscondamné et puni. En l'absence d'une hiérarchiemilitaire traditionnelle, comme cefut le cas enBosnie et au Rwanda, un supérieur est bien placépour nier sa responsabilité face aux méfaits de sessubalternes. Malgré cela, l'auteur conclut que leTribunal pour l'ex-Yougoslavie, dans l'affaireCelebici, a adopté une approche realiste face auprincipe de la responsabilité des supérieurs et aproprement reconnu la responsabilité pénale d'uncommandant d'un camp d'internement pour les violscommis par son subalterne.

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Canadian Yearbook of International Law/Annuaire canadien de droit international , Volume 36 , 1998 , pp. 93 - 149
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Copyright © The Canadian Yearbook of International Law/Annuaire canadien de droit international 1998 

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References

1 Trial of General Tomoyuki Yamashita ( 1946) 4 Law Reports of the Trials of War Criminals, Case no. 21 at 35 [hereinafter Yamashita].

2 Brackman, Arnold, The Other Nuremberg: The Untold. Story of the Tokyo War Crimes Trials 433 (London: Collins, 1989).Google Scholar

3 Piccigallo, Philip, The Japanese on Trial: Allied War Crimes Operations in the East 50 (Austin: Univ. of Texas Press, 1979)CrossRefGoogle Scholar. “Of all Allied cities, only Warsaw suffered greater damage during the war than Manila”: Spector, Ronald, Eagle against the Sun: TheAmerican War with Japan 524 (New York: Viking, 1984).Google Scholar

4 Taylor, Lawrence, A Trial of Generals: Homma, Yamashita, MacArthur 126 (South Bend, Indiana: Icarus Press, 1981).Google Scholar

5 Yamashita, supra note 1 at 3.

6 Piccigallo, supra note 3 at 56.

7 See infra notes 50–51 and accompanying text.

8 See infra notes 52–54 and accompanying text.

9 Sellers, Patricia Viseur and Okuizumi, Kaoru, “Intentional Prosecution of Sexual Assaults” (1997) 7 Transnational Law and Contemporary Problems 45 at 62–68.Google Scholar

10 International Tribunal for the Former Yugoslavia, The Prosecutors. Delalic, Mucic, Landzo and Delie: Judgment (Nov. 16, 1998) Case No. IT-96-21-T [hereinafter Celebici judgment]. The trial began in March 1997. On Oct. 15, 1998, the presiding judge closed the trial hearings and a judgment was released on Nov. 16, 1998. Notices of appeal against the judgment were given by accused Delie and Mucic and by the Prosecutor (with regard to Delalic’s acquittal and the length of Mucic’s sentence).

On May 7, 1999, the Yugoslav Tribunal released another judgment relating to command responsibility in The Prosecutor v. Zlatko Aleksovski. The Trial Chamber found Zlatko Aleksovski guilty both as an individual participant and as commander on violations of the laws or customs of war namely, outrages upon personal dignity. The charges did not include acts of sexual violence. The Trial Chamber imposed a sentence of 30 months imprisonment. See International Tribunal for the Former Yugoslavia, The Prosecutor v. Zlatko Aleksovski: Judgment (May 7, 1999) Case No. IT-95-14/1. On May 17 and May 19, 1999 respectively, the defence and the prosecution filed Notices of Appeal against both the judgment and sentence.

11 Taylor, Telford, The Anatomy of the Nuremberg Trials 6 (London: Bloomsbury, 1993).CrossRefGoogle Scholar

12 1864, 129 Cons. T. S. 361.

13 1899, 187 Cons. T.S. 429.

14 1907, 205 Cons. T.S. 277.

15 Geneva Convention I for the Amelioration of the Condition of the Wounde and Sick in Armed Forces in the Field; Geneva Convention II for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea; Geneva Convention III Relative to the Treatment of Prisoners of War; Geneva Convention IV Relative to the Protection of Civilian Persons in Time of War: reprinted in Roberts, Adam and Guelfi, Richard, Documents on the Laws of War, 2nd ed. (Oxford: Clarendon Press, 1989)Google Scholar [hereinafter Geneva Conventions].

16 Geneva Convention IV on Civilians, supra note 15, 271.

17 Askin, Kelly Dawn, War Crimes against Women 28 (The Hague: Martinus Nijhoff Publishers, 1997).CrossRefGoogle Scholar

18 Green, L. C., “Command Responsibility in International Humanitarian Law” (1995) 5 Transnational Law and Contemporary Problems 319 at 322.Google Scholar

19 Hague Convention on Civilians, Oct. 18, 1907, Annex, Art. 1(1), reprinted in Roberts and Guelff, supra note 15 at 48.

20 Cherif Bassiouni, M. and Manikas, Peter, The Law of the International Criminal Tribunal for the Tormer Yugoslavia 35 (Irvington-on-Hudson, New York: Transnational Publishers, 1996).Google Scholar

21 For a more detailed description and analysis of Second World War trials dealing with command responsibility, see Parks, William, “Command Responsibility for War Crimes” 62 Military I.. Rev. 1.Google Scholar See also “Notes on the Case” in Yamashita, supra note 1 at 75–96.

22 Green, supra note 18 at 336.

23 Landrum, Bruce, “The Yamashita War Crimes Trial: Command Responsibility Then and Now” (1995) 149 Military L. Rev. 293 at 295.Google Scholar

24 Yamashita, supra note 1 at 18, 26–27.

25 Ibid., 17.

26 In Re Yamashita, 327 U.S. 1 (1946). The judgment in Yamashita remains controversial for its treatment of the mental element of command responsibility that is, knowledge by the superior of the subordinates’ offences. The Commission, in its judgment, failed to make an express finding that Yamashita knew about the behaviour of his troops, though it did state that the prosecution “presented evidence to show that the crimes were so extensive and widespread… that they must have been wilfully permitted by the accused, or secretly ordered”: Yamashita, supra note 1 at 34. Many observers are therefore critical of the judgment, asserting that a standard of absolute or strict liability was applied by the Commission, one that held Yamashita liable solely based on his command position. They argue that the evidence presented at the trial failed to reveal either that the General had any actual knowledge of the crimes being committed, or that he had the means to acquire such knowledge. His crime, it is asserted, lay simply in the fact that he held the position of commander of the Japanese troops. For proponents of this view, see Lael, Richard, The Yamashita Precedent: War Crimes and Command Responsibility (Wilmington, DE: Scholarly Resources, 1982)Google Scholar; Taylor, supra note 11 at 239; Taylor, supra note 4; A. Reel, The Case of General Yamashita (New York: Octago Books, 1971; originally printed in 1949). Reel was one of Yamashita’s defence counsel. Two authors have expressed the view that General Yamashita was treated more harshly than German generals, and that this is perhaps explained by racial prejudice. See Taylor, supra note 11 at 239; Prévost, Ann Marie, “Race and War Crimes: The 1945 War Crimes Trial of General Tomoyuki Yamashita” (1992) 14 Hum. Rts Q. 303.CrossRefGoogle Scholar

Other analysts have argued that the Commission did conclude that Yamashita knew, or must have known, that his troops were involved in criminal acts. See Burnett, W. D., “Command Responsibility and a Case Study of the Criminal Responsibility of Israeli Military Commanders for the Pogrom at Shatila and Sabra” (1985) 107 Military L. Rev. 71 at 98Google Scholar; Crowe, Christopher, “Command Responsibility in the former Yugoslavia: The Chances for Successful Prosecution” (1995) 29 U. Richmond L.R. 191 at 207–8Google Scholar; O’Brien, Edward “The Nuremberg Principles, Command Responsibility, and the Defense of Captain Rockwood” (1995) 149 Military L. Rev. 275 at 286.Google Scholar While no express finding was made on this point by the Commission, the references made by the Commission to the widespread nature of the crimes committed by the troops under Yamashita’s command support the view that the Commission believed that Yamashita had actual knowledge, or that he was negligent in not informing himself. See Yamashita, supra note 1 at 35.

27 Ibid.

28 Brackman, supra note 2 at 419.

29 In its first judgment issued in September igg8, the Rwanda Tribunal asserted that:

It is, in fact, well-established, at least since the Tokyo trials, that civilians may be held responsible for violations of international humanitarian law. Hirota, the former Foreign Minister of Japan, was convicted at Tokyo for crimes committed during the rape of Nanking. Other post-World War II trials unequivocally support the imposition of individual criminal liability for war crimes on civilians where they have a link or connection with a Party to the conflict: ’The accused were not members of the German armed forces, but personnel of a civilian institution. The decision of the Military Commission is, therefore, an application of the rule that the provisions of the laws or customs of war are addressed not only to combatants but also to civilians, and that civilians, by committing illegal acts against nationals of the opponent, may become guilty of war crimes” [references omitted].

International Criminal Tribunal for Rwanda, The Prosecutors. Jean-Paul Akayesu: Judgment, Sept. 2, 1998, Case No. ICTR-96-4-T ats. 6.5 [hereinafter Akayesu].

30 Hostage case (1948) 11 Trials of War Criminals before the Nuremberg Military Tribunals 759.

31 Ibid., 1261.

32 Ibid., 1260.

33 Ibid., 1271–72.

34 Landrum, supra note 23 at 298.

35 High Command case, (1948) 10–11 Trials of War Criminals before the Nuremberg Military Tribunals 1 [hereinafter High Command].

36 Ibid., 543–44

37 Ibid.,544–45.

38 Geneva Protocol I Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Conflicts (1977): reprinted in Roberts and Guelff, supra note 15 at 387 [hereinafter Protocol I]. The process that led to the inclusion of command responsibility in the Protocol is described as follows:

The idea that omissions as well as the commission of a positive act should be regarded as a grave breach was introduced during the two Conferences of Government Experts in 1971 and 1972. In view of the fact that this idea is not found in the legal orders of all States, the [International Committee for the Red Cross] was somewhat reluctant to insist on incorporating a provision in this sense into the Protocol. Those in favour of the idea included representatives of some western States, and also Bjelorussia. They were able to refer to the practice of war crimes tribunals, in particular the case of General Yamashita, who had been condemned for a failure to act, because the tribunal found that there existed a legal duty to do so.

Bothe, M., Partsch, K. J. and Solf, W., New Rules for Victims of Armed Conflicts: Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949 (The Hague: Martin us Nijhoff Publishers, 1982) 524.CrossRefGoogle Scholar

39 Protocol I, supra note 38 at 439.

40 Art. 28 on the responsibility of commanders and other superiors reads as follows:

In addition to other grounds of criminal responsibility under this Statute for crimes within the jurisdiction of the Court:

  • 1. A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where:

  • (a) That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and

  • (b) That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.

  • (2.) With respect to superior and subordinate relationships not described in paragraph 1, a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where:

  • (a) The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes;

  • (b) The crimes concerned activities that were within the effective responsibility and control of the superior; and

  • (c) The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.

United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, Statute of the International Criminal Court, UN Doc. A/CONF. 183/9 (Iuly ιΊ ^9^) at 23 [hereinafter Rome Statute].

41 Ibid. This principle was confirmed by the Yugoslav Tribunal, which held in the Celebici case that superior responsibility in Art. 7(3) of its Statute “extends not only to military commanders but also to individuals in non-military positions of superior authority”: Celebici judgment, supra note 10 at 134. The Rwanda Tribunal has also stated that civilians can be held liable under the principle of command responsibility. However, the Rwanda Tribunal asserted in Akayesu, supra note 29 at s. 6.2. that the responsibility of civilians must be assessed on a case-by-case basis:

The Chamber therefore finds that in the case of civilians, the application of the principle of individual criminal responsibility, enshrined in Article 6(3), to civilians remains contentious. Against this background, the Chamber holds that it is appropriate to assess on a case by case basis the power of authority actually devolved upon the Accused in order to determine whether or not he had the power to take all necessary and reasonable measures to prevent the commission of the alleged crimes or to punish the perpetrators thereof.

42 For the Statute of the International Criminal Tribunal for the former Yugoslavia, see the Report of the Secretary-General Pursuant to Paragraph 2 of the Security Council Resolution 808, UN SCOR 48th Sess., UN Doc. S/25704 and Annex [hereinafter Yugoslav Statute]. For the Statute of the International Criminal Tribunal for Rwanda, see Resolution 955, UN Security Council, Nov. 8, 1994, S/RES/955.

43 For instance, the Regulations Concerning the Application of the International Law of War to the Armed Forces of the Socialist Federal Republic of Yugoslavia incorporated a definition of command responsibility:

The commander is personally responsible for violations of the law of war if he knew or could have known that his subordinate units or individuals are prepared to violate the law, and he does not take measures to prevent violations of the law of war. The commander who knows that the violations of the law of war took place and did not charge those responsible for the violations is personally responsible.

In case he is not authorized to charge them, and he did not report them to the authorized military commander, he would also be personally responsible. International Criminal Tribunal for the former Yugoslavia, Prosecutors. Landzo, Delie, Delalic and Mucic, the Prosecutor’s Pre-Trial Brief, Case No. IT-96-21-T, Feb. 1997 at 10-11 [hereinafter Pre-Trial Brief].

44 Celebici judgment, supra note 10 at 122.

45 ibid., 128.

46 Pre-Trial Brief, supra note 43 at 6.

47 Akayesu, supra note 29 at s. 6.2. See also Pre-Trial Brief, supra note 43 at 6.

48 Howard, Kenneth, “Command Responsibility for War Crimes” (1972) 21 J. Public L. at 14.Google Scholar

49 Akayesu, supra note 29 at s. 6.2.

50 See Gutman, Roy, “Mass Rape — Muslims Recall Serb Attacks,” Newsday (Aug. 23, 1992)Google Scholar. Gutman was the first journalist to report on the use of sexual violence in the “ethnic cleansing” campaigns carried out by Serbian troops against Muslim and Croatian populations. See also Burns, John, “Forced to Have Serbian Babies,” Ottawa Citizen (Oct. 5, 1992)Google Scholar; Rodrigue, George, “Women: The Targets of Terror,” Montreal Gazette (Nov. 23, 1992)Google Scholar; Karlak, Pat, “Speaking for Women Too Ashamed to Tell Story,” Globe and Mail (Dec. 29, 1992)Google Scholar; and Klein, Dianne, “Bosnian Rape Victims: An Unending Scream,” Montreal Gazette (Dec. 30, 1992).Google Scholar

51 For a detailed account of the allegations made by women victims of sexual violence in Bosnia, see Alexandra Stiglmayer, “The Rapes in Bosnia-Herzegovina” in Stiglmayer, Alexandra, ed., Mass Rape: The War against Women in Bosnia-Herzegovina (Lincoln, Nebraska: Univ. of Nebraska Press, 1994)Google Scholar. While incidents of rape have been reported against all sides to the conflict, the majority of instances of sexual abuse involved Muslim women victims of Serbian forces: ibid., 85.

52 French, Amelia, “Women Break Their Silence over the Rape of Rwanda,” Independent (Nov. 10, 1997)Google Scholar. See also Human Rights Watch, infra note 85.

53 See Ray, Amy, “The Shame of It: Gender-Based Terrorism in the Former Yugoslavia and the Failure of International Human Rights Law to Comprehend the Injuries” (1997) 46 Amer. Univ. L. Rev. 793 at 796Google Scholar, n. 20. She refers to reports by Graca Machel, leader of a UN study probing the plight of children in war zones, who alleges that Tutsi women and girls were deliberately infected with the AIDS virus to inflict a slow but certain death on the Tutsi.

54 Copelon, Rhonda, “Surfacing Gender: Re-Engraving Crimes against Women in Humanitarian Law” (1994) 5 Hastings Women’s L.J. 243 at 245.Google Scholar

55 Krill, Françoise, “The Protection of Women in International Law” (Nov.-Dec. 1985) 25:223 Int’l Rev. of the Red Cross 337.CrossRefGoogle Scholar

56 Askin, supra note 17 at 13.

57 Brownmiller, Susan, Against Our Will: Men, Women, and Rape (London: Seeker and Warburg, 1975)Google Scholar

58 Ibid., 31–113.

59 Gardam, Judith, “The Law of Armed Conflict: A Gendered Regime?” in Dallmeyer, Dorinda G., ed., Reconceiving Reality: Women and International Law 177 (Washington: Amer. Soc. of Int’l L., 1993)Google Scholar [hereinafter “Gendered Regime”].

60 See Kalajdzic, Jasminka, “Rape, Representation, and Rights: Permeating International Law with the Voices of Women” (1996) 21 Queen’s L.J. 457.Google Scholar

61 Brownmiller, supra note 57 at 35.

62 Ibid., 73–75; Kalajdzic, supra note 60 at 463.

63 Copelon, supra note 54 at 259. For more information on women forced into sexual slavery by Japanese troops during the Second World War, see Hicks, George, The Comfort Women (New York: W. W. Norton, 1994)Google Scholar; International Commission of Jurists, Report of a Mission — Comfort Women: An Unfinished Ordeal (Geneva, 1994); Boling, David, “Mass Rape, Enforced Prostitution, and the Japanese Imperial Army: Japan Eschews International Legal Responsibility?” (1995) 32 ColumbiaJ. of Transnational L. 533.Google Scholar

64 Kalajdzic, supra note 60 at 466.

65 See Nadler, John, “Rape Victims’ Shame Hinders Prosecutions,” Ottawa Citizen (Apr. 30, 1999)Google Scholarat A7; Johnston, Bruce, “30 Women Pulled from Truck, Raped, Girls Say,” National Post (Apr. 14, 1999)Google Scholar; Gall, Carlotta, “Refugees Crossing Kosovo Border Tell of Rapes and Killings,” New York Times (Apr. 20, 1999).Google Scholar

66 Huckshorn, Kristin , “Rape: Victims Pay a Double Price,” Ottawa Citizen (Dec. 28, 1992)Google Scholar. See also Human Rights Watch, The Human Rights Watch Global Report on Women’s Human Rights 25–31 (New York, 1995). Women who fled the conflict in Somalia to escape violence and sexual assaults often faced similar abuse in refugee camps: Human Rights Watch, Seeking Refuge, Finding Terror: The Widespread Rape of Somali Women Refugees in North Eastern Kenya (New York: Oct. 1993)

67 Brownmiller, supra note 57 at 40–48.

68 Kalajdzic, supra note 60 at 467.

69 Brooke, James, “Rapists in Uniform: Peru Looks the Other Way,” New York Times (Apr. 2g, 1993)Google Scholar. See also the Human Rights Watch, Global Report, supra note 66 at 74–100; Human Rights Watch, Untold Terror: Violence Against Women in Peru’s Armed Conflict (New York: 1992).

70 Copelon, supra note 54 at 259. See also “Haitian Activists Rape Targets,” Globe and Mail (June 10, igg4); Human Rights Watch, Rape in Haiti: A Weapon of Terror (New York: 1994).

71 Human Rights Watch and Physicians for Human Rights, Rape in Kashmir: A Crime of War (New York: 1993).

72 Askin reports that “unplanned, individually motivated, opportunistic rape has revealed itself in the Balkan conflict”: supra note 17 at 288–90.

73 In the former Yugoslavia, “some military and detention camp commanders, for example, reportedly ordered their subordinates to commit rape and sexual assault and failed to punish perpetrators when this criminal conduct was disclosed”: Bassiouni and Manikas, supra note 20 at 55.

74 The war in Bangladesh is believed to have resulted in 200,000 rapes. It has been suggested that the extent and systematic nature of these assaults had to be the result of conscious Pakistani army policy: Brownmiller, supra note 57 at 79. The same has been suggested with regard to the rape of Muslim women by Serbian soldiers in the former Yugoslavia: Stiglmayer, supra note 51 at 83.

75 Lt. Gen. W. R. Peers, who conducted a military inquiry into the atrocities committed by US soldiers in My Lai in 1968, concluded that a permissive attitude existed within the command and that, before the rapes and murders committed at My Lai, there had been “instances of mistreatment, rape, and some unnecessary killings” by members of the unit that did not result in any disciplinary action: Peers, W. R., The My Lai Inquiry 232 (New York: W W. Norton, 1979).Google Scholar

76 According to research conducted by Brownmiller, sexual assaults by members of the Vietcong and North Vietnamese Army did occur during the Vietnam war, but they were rare because these military organizations had strong prohibitions against rape and severely punished offenders: Brownmiller, supra note 57 at 9092. In Bosnia, while Serbian women were reported to have been sexually victimized by Muslim and Croatian soldiers in the former Yugoslavia, these incidents were not as frequent or as systematic as the rapes of Muslim and Croatian women by Serb forces: Askin, supra note 17 at 283.

77 In Nanking, over 20,000 women and girls were reported raped by Japanese soldiers in the first six weeks of the city’s occupation in the First World War. See Chang, Iris, The Rape of Nanking 8g (New York: BasicBooks, 1997).Google Scholar

78 In Bangladesh during the 1971 war, and in Greece and Italy during the Second World War, women are reported to have been raped by “whatever soldiers happened to pass through their village”: Brownmiller, supra note 57 at 81.

79 Askin, supra note 17 at 16. While my article focuses on the victimization of women through sexual assaults, the definition of sexual violence as a gender-based crime does not exclude from its scope the less frequent cases of sexual violations of men that occur in armed conflicts. Indeed, I adopt the definition put forth by Rhonda Copelon: “when a man is raped, the humiliation is accomplished through reducing him to the status of a woman. For this reason, sexual violence, whether carried out against women or men, is a crime of gender”: Copelon, supra note 54 at 246, n. 12.

80 Ibid. See also Meron, Theodor, “Rape as a Crime under International Humanitarian Law” (1993) 87 AJ.I.L. 424Google Scholar; Niarchos, Catherine, “Women, War, and Rape: Challenges Facing the International Tribunal for the Former Yugoslavia” (1995) 17 Hum. Rts Q. 649CrossRefGoogle Scholar; Green, Jennifer, Copelon, Rhonda, Cotter, Patrick and Stephens, Beth, “Affecting the Rules for the Prosecution of Rape and Other Gender-Based Violence before the International Criminal Tribunal for the Former Yugoslavia: A Feminist Proposal and Critique” (1994) 5 Hastings Women’s L.J. 171.Google Scholar

81 Bassiouni, M. Cherif and McCormick, Marcia, Sexual Violence: An Invisible Weapon of War in the Former Yugoslavia 15 (Chicago: International Human Rights Law Institute, 1996).Google Scholar

82 Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780, 49th Sess., Annex, UN Doc 8(1994/674/1994): reprinted in Bassiouni and Manikas, supra note 20 at 168, para. 498.

83 Ibid., 65–198.

84 Helsinki Watch, War Crimes in Bosnia-Herzegovina (1993), cited in Fisher, Siobhán, “Occupation of the Womb: Forced Impregnation as Genocide” (1996) 346 Duke L.J. 91 at 108.CrossRefGoogle Scholar

85 Human Rights Watch/Africa, Human Rights Watch Women’s Rights Project, and Fédération Internationale des Ligues des Droits de l’Homme, Shattered Lives: Sexual Violence during the Rwandan Genocide and Its Aftermath (New York: 1996).

86 Ibid., 1.

87 International Criminal Tribunal for the Former Yugoslavia, Prosecutorv. Meakic, Kvocka, Prcac, Radic, Kos, Gruban, Govedarica, Gruban, Kostic, Paspalj, Pavlic, Popovic, Predojevic, Savie, Babic, fanjic, Knezevic, Saponja, Zigic: Indictment (Feb.13 199δ) Case No. IT-95-4. Miroslav Kvocka and Mladen Radicwere were detained on Apr. 8, 1998, and transferred into the custody of the Yugoslav Tribunal.

88 Also indicted is Esad Landzo, a guard at the Celebici camp. Landzo was convicted for his direct participation in individual criminal acts: Celebici judgment, supra note 10.

89 International Criminal Tribunal for the Former Yugoslavia, Prosecutor v. Zejnil Delalic, Zdravko Mucic, Esad Landzo and Hazim Delic: Indictment (Mar. 19, 1996), Case No. IT-96-21-T [hereinafter Celebici indictment].

90 International Criminal Tribunal for the Former Yugoslavia, Prosecutor v. Dusko Sikirica, Damir Dosen, Dragan Fustar, Dragan Kulundzija: Indictment (June 21, 1995), Case No. IT-95-8. In that case, camp commanders are charged with forcing male inmates to engage in fellatio. Following his detention on June 7, 1999 in Bosnia, shift commander Dragan Kolundzija was transferred to the Detention Unit of the International Criminal Tribunal for the former Yugoslavia (ICTY) in The Hague. One of his co-accused, Zoran Zigic, surrendered himself to the Tribunal’s custody on Apr. 16, 1998. The six others are still at large.

91 International Criminal Tribunal for the Former Yugoslavia, Prosecutor v. Dragan Gagovic, GojkoJankovic, Dragoljub Kunarac: Indictment (June 18,1996), Case No. IT-96-23T [hereinafter Foca indictment].

92 For a report on the atrocities committed in Foca, see Human Rights Watch, Bosnia and Hercegovina — A Closed, Dark Place: Past and Present Human Rights Abuses in Foca (New York: 1998).

93 Kunarac turned himself in to NATO forces in Bosnia and he is currently in custody in The Hague: Aida Cerkez, “Bosnian Serb War Crimes Suspect Surrenders to NATO troops,” Associated Press (Mar. 4, 1998). In his first appearance before the Trial Chamber, Kunarac pleaded guilty to the charges of sexual assaults but entered a not guilty plea to charges of torture. The split plea caused much confusion, made worse by the absence of Kunarac’s lawyer on the second day of the hearing: Sabine Gillot, “Affaire Kunarac: le TPI va de surprise en surprise,” Agence. France Presse (Mar. 10, 1998). Several days later, the Trial Chamber entered a not guilty plea for Kunarac: Trial Chamber, International Criminal Tribunal for the Former Yugoslavia, News Release CC/PIO/303-E, “Kunarac Case: Trial Chamber Enters A Not-Guilty Plea for the Accused” (Mar. 13, 1998). On July 13, 1998, the Office of the Prosecutor amended the initial Foca indictment to bring isolated charges against Kunarac. The new indictment clarifies and expands the charges against Kunarac relating to the events in Foca: Askin, Kelly D., “Sexual Violence in Decisions and Indictments of the Yugoslav and Rwandan Tribunals: Current Status” (1999) 93 A.J.I.L. 97 at 120.Google Scholar

94 Foca indictment, supra note 91.

95 International Criminal Tribunal for the Former Yugoslavia, Prosecutor v. Anto Furundzija: Indictment (Nov. 2, 1995), Case No. IT-95-17/1-PT. The Trial Chamber handed down its judgment (Dec. 10, 1998) [hereinafter Furundzija judgment]. The Tribunal found Anto Furundzija guilty of aiding and abetting in outrages upon personal dignity, including rape. He was sentenced to eight years’ imprisonment. His guilt was based on individual criminal responsibility under Art. 7(1) of the Statute rather than on command responsibility under Art. 7(3).

96 International Criminal Tribunal for the Former Yugoslavia, Prosecutor v. Radovan Karadzic and Ratko Mladic: Indictment (July 25, 1995), Case No. IT-95–5

97 The Tribunal’s findings were made in a review of the indictments pursuant to Rule 61 of the Tribunal’s Rules and Procedure: International Criminal Tribunal for the Former Yugoslavia, Prosecutorv. Radovan Karadzic and Ratko Mladic: Review of Indictment Pursuant to Rule. 61 (July 11,1996), Cases No. IT-95-5-R61 and IT-95-18-R6.

98 Ibid., 58.

99 Wu, Timothy and Kang, Yong-Sung, “Criminal Liability for the Actions of Subordinates: The Doctrine of Command Responsibility and its Analogues in United States Law” (1997) 38 Harv. Int’l. L.J. 272 at 273.Google Scholar See also Oppenheim, J. and der Wolf, W. van, Global War Crimes Tribunal Collection: Volume 1, The Rwanda Tribunal 114–68 (The Netherlands: Wolf Global Legal Publishers, 1997)Google Scholar

100 One indictment issued by the Tribunal for Rwanda accuses Laurent Semanza, the former mayor of Bicumbi, of planning, ordering, and encouraging members of the armed militia to sexually assault Tutsi women: Fondation Hirondelle, “L’ancien maire de Bicumbi plaide non coupable sur la base d’un acte d’accusation modifié” (24 juin 1999). Alfred Musema, a former head of a tea factory in Gisovi, is facing charges that he personally raped Tutsi women and encouraged others to do the same: Fondation Hirondelle, “Alfred Musema plaide non coupable de viol” (6 mai 1999). Two other defendants are facing charges of gender-based sexual violence are Pauline Nyiramasuhuko and Arsene Nta-hobali. International Criminal Tribunal for Rwanda, Prosecutor v. Nyiramasuhuko and Ntahobali: Indictment (May 26, 1997), Case No. ICTR-97-2 l-I . However, these defendants are charged with having personally committed acts of sexual violence: Askin, supra note 93 at 122.

101 International Criminal Tribunal for Rwanda, The Prosecutor against Jean-Paul Akayesu: Indictment (Feb. 16, 1996), Case No. ICTR-96-4-T.

102 “Les crimes de viols et violences sexuelles traduits devant la cour pour la première fois,” Ubutabera: Journal Indépendant d’informations sur le Tribunal pénal international pour le Rwoanda (Oct. 22, 1997) (available from the Intermedia website: http://www.inter-media.org) [hereinafter “Crimes de viols”].

103 “Viols collectifs dans le bureau communal de Taba,” Ubutabera: Journal Indépendant d’informations sur le Tribunal pénal international pour le Rwanda (Oct. 22, 1997) (available from the Intermedia website: http://www.inter-media.org).

104 “Crimes de viols” supra note 102. The case against Akayesu promised to be the very first authoritative judicial pronouncement on the criminal responsibility of an official who failed to act to prevent or punish subordinates for the commission of sexual assaults. However, the Rwanda Tribunal’s judgment in Akayesu declines to make any findings regarding Akayesu’s liability under s. 6(3) of its statute dealing with a commander’s omission to prevent and punish subordinates’ crimes: Akayesu, supra aote 29.

105 Askin, supra note 17 at 28–29.

106 Ibid., 29.

107 Lael, supra note 26 at 83–84.

108 parks, supra note 21 at 70–71.

109 ibid.,71.

110 Paust, Jordan, “My Lai and Vietnam: Norms, Myths and Leaders’ Responsibility” (1972) 57 Military L. Rev. 99 at 182.Google Scholar See also Chang, supra note 77 at 4950, 89–99.

111 Brownmiller, supra note 57 at 58.

112 Brackman, supra note 2 at 190.

113 Ibid., 193.

114 Ibid.

115 Ibid., 199. A recent book on the atrocities of Nanking suggests that Matsui “suspected that something had gone terribly amiss” soon after his arrival in Nanking: Chang, supra note 77 at 50. Matsui is reported to have expressed dismay and regret as he learned of the events in Nanking in addition to rebuking officers and commanders for the atrocities: ibid., 51–52.

116 General Muto was also Chief of Staff to General Yamashita during the “Rape of Manila”: Brackman, supra note 2 at 199.

117 Ibid., 425–26.

118 Parks, supra note 21 at 69.

119 Ibid.

120 The IMTFE held:

Hirota was derelict in his duty in not insisting before the Cabinet that immediate action be taken to put an end to the atrocities, failing any other action open to him to bring about the same result. He was content to rely on assurances which he knew were not being implemented while hundreds of murders, violations of women, and other atrocities were being committed. His inaction amounted to criminal negligence: Akayesu, supra note 29 at s. 6.2.

121 Piccigallo, supra note 3 at 164; Trial ofTakashi Sakai (1946) 14 Law Reports of the Trials of War Criminals, Case No. 83.

122 Ibid., 2.

123 Ibid., 7.

124 Ibid.

125 Peers, supra note 75 at 175.

126 Bilton, Michael and Sim, Kevin, Four Hours in My Lai: A War Crime and Its Aftermath 129 (New York: Viking, 1992).Google Scholar

127 Thirteen officers and enlisted men were charged with war crimes or crimes against humanity. Nine never went to court, and had their charges dismissed or were simply barred from re-enlistment. Three faced court martials but were found not guilty, including Captain Medina. Only one soldier was convicted, Lieutenant William Calley. Peers, supra note 75 at 227.

128 70 F.3d 232 (2d Cir. 1995), cert, denied, 116 S. Ct. 2524 (1996) [hereinafter Kadic].

129 Isenberg, Beth Ann, “Genocide, Rape, and Crimes against Humanity: An Affirmation of Individual Accountability in the Former Yugoslavia in the Karadzic Actions” (1997) 60 Albany L. Rev. 1051 at 1059–60.Google Scholar

130 Ibid., 1059,n. 42.

131 866 F. Supp. 734 (S.D.N.Y 1994).

132 Kadic, supra note 128 at 242.

133 28 U.S.C. § 1350 (1994). This law allows international common law torts claims to be adjudicated in the courts of the United States: Isenberg, supra note 129 at 1056, 1060.

134 On remand, the discovery phase of the cases was referred to a U.S. District Judge. In the course of those proceedings, the defendant’s counsel submitted an unsworn declaration in which “Karadzic announced that he found it impossible to contest in the United States” the claims in the Kadic case. See U.S. District Court, S. Dist. of New York, Order regarding class status in the matter of Jane Does. Karadzic (Dec. 2, 1997). Available on the internet at: http://diana.law.yale.edu/diana/db/order12297.html.

143 Yugoslav Statute, supra note 42 at 9, para. 34.

136 See Meron, supra note 80 at 426; Askin, supra note 17 at 314–22; and, Niarchos, supra note 80 at 675–76.

137 Fisher, supra note 84; Catharine A. MacKinnon, “Theory is not a Luxury” in Dallmeyer, supra note 59. The Rwanda Tribunal has in fact reached such a conclusion: see Akayesu, supranote 29.

138 Copelon, supra note 54 at 257–64.

139 For an analysis of legal difficulties involved in defining rape as a violation of the laws of war, see Askin, supra note 17 at 308–59. See also Bassiouni and Manikas, supra note 20 at 556–90.

140 See Akayesu, supra note 29.

141 Ibid.

142 See Furundzija judgment, supra note 95.

143 See Celebici judgment, supra note 10.

144 Foca indictment, supra note 91.

145 Burnett, supra note 26 at 1 280.

154 Ibid.

147 Ibid.

148 International Criminal Tribunal for the Former Yugoslavia, Prosecutor’s Response to Defendant’s Motion for Judgment of Acquittal (Celebici) (Mar. 6, tgg8) Case No. IT-g6-2i-T at 44 [hereinafter Motion for Acquittal].

149 Akayesu, supra note 2g at s. 7.7.

150 Only one case reviewed above suggested that the determination of the superior-subordinate relationship may have given rise to difficulties. In the Toyoda trial, naval officers stationed in Manila were, for the most part, responsible for the rapes and other crimes that occurred in the city at the end of the war. Admiral Toyoda was charged with command responsibility for those crimes. However, in the course of the trial it was established that, while the troops were naval officers and soldiers, they were in fact commanded by the Japanese army. Admiral Toyoda was consequently acquitted of the charge of crimes against humanity: Parks, supra note 21 at 70–71.

151 The problems in identifying individuals with effective authority and control over subordinates during modern armed conflicts seem to have preoccupied the drafters of the statute of the International Criminal Court. Indeed, the language of the provision dealing with command responsibility appears to deal with this difficulty. Art. 28 refers to “military commander or person effectively acting as a military commander,” and further describes command as “effective command and control, or effective authority and control as the case may be”: Rome Statute, supra note 40.

152 See Pre-Trial Brief, supra note 43 at 3.

153 Human Rights Watch, supra note 85 at 1.

154 Akayesu, supra note 29 at s. 1.2.

155 Ibid., s. 1.4.2.

156 The Tribunal found that “the Accused had reason to know and in fact knew that acts of sexual violence were occurring on or near the premises of the bureau communal and that he took no measures to prevent these acts or punish the perpetrators of them.” Ibid.

157 The judgment reads:

The Tribunal finds, under Art. 6(1) of its Statute, that the Accused, by his own words, specifically ordered, instigated, aided and abetted the following acts of sexual violence:

  • (i) the multiple acts of rape of ten girls and women, including Witness JJ, by numerous Interahamwe in the cultural center of the bureau communal;

  • (ii) the rape of Witness OO by an Interahamwe named Antoine in a field near the bureau communal;

  • (iii) the forced undressing and public marching of Chantal naked at the bureau communal.

The Tribunal finds, under Art. 6( 1 ) of its Statute, that the Accused aided and abetted the following acts of sexual violence, by allowing them to take place on or near the premises of the bureau communal, while he was present on the premises in respect of (i) and in his presence in respect of (ii) and (iii), and by facilitating the commission of these acts through his words of encouragement in other acts of sexual violence, which, by virtue of his authority, sent a clear signal of official tolerance for sexual violence, without which these acts would not have taken place: (i) the multiple acts of rape of fifteen girls and women, including Witness JJ, by numerous Interahamwe in the cultural center of the bureau communal; (ii) the rape of a woman by Interahamwe in between two buildings of the bureau communal, witnessed by Witness NN; (iii) the forced undressing of the wife of Tharcisse after making her sit in the mud outside the bureau communal, as witnessed by Witness KK; The Tribunal finds, under Art. 6(1) of its Statute, that the Accused, having had reason to know that sexual violence was occurring, aided and abetted the following acts of sexual violence, by allowing them to take place on or near the premises of the bureau communal and by facilitating the commission of such sexual violence through his words of encouragement in other acts of sexual violence which, by virtue of his authority, sent a clear signal of official tolerance for sexual violence, without which these acts would not have taken place:

  • (i) the rape of Witness JJ by an Interahamwe who took her from outside the bureau communal and raped her in a nearby forest;

  • (ii) the rape of the younger sister of Witness NN by an Interahamwe at the bureau communal;

  • (iii) the multiple rapes of Alexia, wife of Ntereye, and her two nieces Louise and Nishimwe by Interahamwe near the bureau communal;

  • (iv) the forced undressing of Alexia, wife of Ntereye, and her two nieces Louise and Nishimwe, and the forcing of the women to perform exercises naked in public near the bureau communal. Ibid.

158 Commission on Human Rights, Contemporary Forms of Slavery: Systematic Rape, Sexual Slavery and Slavery-Like Practices during Armed Conflict, Final Report of the Special Rapporteur, UN ESCOR, 1988, UN Doc. E/CN.4/ Sub.2/1998/13 (June 22, 1998).

159 “This method of inquiry — asking where women are in the dominant account of the way things are and whether dominant standards and models reflect the reality of women’s perspectives — has had a major impact on many disciplines, in some cases transforming basic concepts and undermining established truths,” Byrnes, Andrew, “Women, Feminism and International Human Rights Law” (1992) 12 Aust. YB. Int’l L. 205 at 209.Google Scholar

160 For an early article on feminism and international law, see Charlesworth, Hilary, Chinkin, Christine, and Wright, Shelly, “Feminist Approaches to International Law” (1992) 85 A.J.I.L. 613.Google Scholar

161 Byrnes, supra note 159 at 232–239.

162 Charlesworth, Chinkin, and Wright, supra note 160 at 628–30.

163 Waring, Marilyn, “Gender and International Law: The Right to Development” (1992) Aust. YB. Int’l L. 177Google Scholar; Charlesworth, Hilary, “The Public/Private Distinction and the Right to Development in International Law” (1992) Aust. YB. Int’l L. 190.Google Scholar

164 Wang, Shirley, “The Maturation of Gender Equality into Customary International Law” (1995) Int’l L. and Politics 899.Google Scholar

165 Charlesworth, Chinkin, and Wright, supra note 160 at 621–34.

166 Copelon, supra note 54.

167 Gardam, Judith, “Gender and Non-Combatant Immunity” (1993) 3 Transnational Law and Contemporary Problems 345 at 348Google Scholar [hereinafter “Non-Combatant”] .

168 Bartlett, S. “Feminist Legal Methods” (1990) 103 Harv. L.R. 829 at 837CrossRefGoogle Scholar, cited in Gardam, Judith, “A Feminist Analysis of International Humanitarian Law” (1992) Aust. YB. Int’l L. 265 at 266.Google Scholar

169 Charlesworth, Chinkin, and Wright, supra note 160 at 613.

170 Enloe, Cynthia, The Morning After: Sexual Politics at the End of the Cold War 60 (Berkeley: Univ. of California Press, 1993).Google Scholar

171 Chinkin, Christine, “Peace and Force in International Law“ in Dallmeyer, supra note 59 at 204–8.Google Scholar Chinkin also observes that wars have sometimes provided positive opportunities for women, leading at least temporarily to greater political and social rights.

172 Gardam, “Non-Combatant” supra note 167 at 348.

173 Tickner, J. Ann, “Feminist Approaches to Issues of War and Peace” in Dallmeyer, , supra note 5g at 271.Google Scholar

174 Enloe, supra note 170 at 240.

175 MacKinnon, supra note 137 at 91.

176 Charlesworth, Hilary, “Worlds Apart: Public/Private Distinctions in International Law” in Thornton, Margaret, ed., Public and Private: Feminist Legal Debates 243 at 255 (Oxford: Oxford Univ. Press, 1995) [hereinafter “Worlds Apart”].Google Scholar

177 Ibid.

178 Ibid., 243.

179 Ray, supra note 53 at 831.

180 Charlesworth, “Worlds Apart,” supra note 176 at 246.

181 Copelon, Rhonda, “Gendered War Crimes: Reconceptualizing Rape in Time of War” in Peters, Julie and Wolper, Andrea, eds., Women’s Rights, Human Rights 208 (New York: Routledge, 1995).Google Scholar

182 Charlesworth, “Worlds Apart”, supra note 176 at 254.

183 Shelley Wright, “Economic Rights, Social Justice and the State: A Feminist Reappraisal” in Dallmeyer, supra note 59 at 128–29.

184 Charlesworth, “Worlds Apart” supra note 176 at 249.

185 See Askin, supra note 17; Chinkin, supra note 171; Chinkin, Christine, “Rape and Sexual Abuse of Women in International Law” (1994) 5 E.J.I.L. 326Google Scholar; Copelon, supra note 54; Gardam, “Gendered Regime,” supra note 5g; Gardam, “Non-Combatant”, supra note i67; Gardam, Judith, “A Feminist Analysis of Certain Aspects of International Humanitarian Law” (1992) Aust. Y.B. Int’l L. 265Google Scholar; Kalajdzic, supra note 60; Niarchos, supra note 80; Meron, supra note 80.

186 Gardam, “Gendered Regime,” supra note 59 at 174–75.

187 Gardam, “Non-Combatant”, supra note 16731349–50.

188 Ibid.

189 Ibid, 353-54. See Geneva Conventions, supra note 15 .

190 Gardam, “Non-Combatant,” supra note 167 at 353. The Tadic case serves to demonstrate the narrow limits of the definition of “protected persons” in the Geneva Conventions. In that case, the Yugoslav Tribunal held that outside involvement in the Bosnian conflict ended in May 1992. After that time, the Bosnian conflict became an internal one in the eyes of the Tribunal. Therefore, civilians victims after that date could no longer be considered “protected persons.” Thus, they enjoyed only “the protection of the prohibitions in Com-mon Article 3, applicable to all armed conflicts, rather than the more specific grave breaches regime applicable to civilians in the hands of a party to an armed conflict of which they are not nationals.” International Criminal Tribunal for the Former Yugoslavia, Prosecutori. Dusko Tadic: Opinion andJudgment, Case No. IT-94-I-T, May 7, 1997 at 227–28.

191 Gardam, “Non-Combatant,” supra note 167 at 354.

192 Gardam points to the Persian Gulf War where aerial bombardment was preferred over a ground assault: Ibid., 355.

193 Ibid., 356–65.

194 Karsten, , Law, Soldiers, and Combat 164 (London: Greenwood Press, 1978).Google Scholar

195 Prange, Gordon, with Goldstein, Donald and Dillon, Katherine, Pearl Harbor: The Verdict of History 333 (New York: Penguin Books, 1986).Google Scholar

196 High Command, supra note 35 at 543.

197 Burnett, supra note 26 at 77.

198 Ibid.

199 Ibid., 151.

200 Karsten, sujbra note 194 at 70.

201 Gardam, “Non-Combatant,” supra note 167 at 369.

202 Ibid., 105, 175.

203 peers; supra note 75, ch. 20.

204 Ibid., 232.

205 Ibid., 233.

206 Karsten, supra note 194 at 32.

207 In fact, a third defendant, Hazim Delic, the deputy commander of the camp, was initially charged with superior responsibility for the rapes of two female detainees. But the Trial Chamber, in its judgment, held that Delie was the only person alleged to be a direct participant in these acts, and therefore there were no subordinate acts for which he could be held responsible as a superior: Celebici judgment, supra note 10 at 280.

208 In addition to the rapes of female detainees, the defendants were charged with superior responsibility for acts of sexual violence against male prisoners. Indeed, on one occasion certain male detainees were forced to perform fellatio on each other: ibid., 363. The Tribunal stated that while this act constituted the offence of inhuman treatment and cruel treatment, the act could constitute rape if it had been pleaded in the appropriate manner: ibid., 364.

209 Motion for Acquittal, supra note 1483137.

210 Ibid., 53; International Criminal Tribunal for the former Yugoslavia, The Prosecutor’s Response to the Pre-Trial Briefs of the Accused ( Celebici), Case No. IT-96-2 l-T, 18 April 1997 at 2 [hereinafter Prosecutor’s Response].

211 Motion for Acquittal, supra note 1483149.

212 Ibid., 69.

213 Ibid., 53.

214 Ibid., 53–54.

215 Ibid., 70.

216 Ibid., 37–38.

217 Prosecutor’s Response, supra note 210 at 2.

218 Motion for Acquittal, supra note 148 at 44.

219 Ibid., 46.

220 Celebici judgment, supra note 10 at 263.

221 Ibid., 179.

222 ibid., 66.

223 Ibid., 102.

224 Ibid., 98.

225 Ibid., 130–31.

226 Ibid., 131.

227 Ibid., 261.

228 Ibid., 237.

229 Ibid., 140.

230 Ibid., 268.

231 Ibid., 147.

232 Ibid., 268–71, 275.

233 Ibid., 271.

234 Ibid., 276. The Trial Chamber also notes that Mr. Mucic had personal knowledge of the rape of at least one woman, Ms. Cecez, since he could notice that she “had been raped because there was a big trace of sperm left on the bed“: Ibid., 328.

235 Ibid., 441.