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9 The Picture of Sexual Violence in the Former Yugoslavia Conflicts as Reflected in ICTY Judgments

Saeeda Verrall

From: Prosecuting Conflict-Related Sexual Violence at the ICTY

Edited By: Baron Serge Brammertz, Michelle Jarvis

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 09 August 2020

Subject(s):
Right to fair trial — Rape and sexual violence — Armed conflict

(p. 299) The Picture of Sexual Violence in the Former Yugoslavia Conflicts as Reflected in ICTY Judgments

A.  Introduction

Over the course of two decades, the International Criminal Tribunal for the former Yugoslavia (ICTY) has amassed a considerable body of written judgments stemming from the conflicts in the former Yugoslavia, covering crimes committed at the outbreak of conflict in Croatia in 1991 and Bosnia and Herzegovina (BiH) in 1992 through to the mass expulsion campaign in Kosovo in 1999 and the conflict in the former Yugoslav Republic of Macedonia in 2001. These judgments have documented widespread atrocities, including sexual violence crimes, committed throughout the different theatres of conflict.

This chapter explores the picture of sexual violence that emerges from this body of judgments. Previous chapters have considered the expectations placed upon the fledgling Office of the Prosecutor (OTP) in terms of accountability for sexual violence crimes as it started its work,2 the obstacles encountered3 and the institutional, legal, and evidentiary strategies the OTP adopted.4 The purpose of the present chapter is to consider, after two decades of case work, what we have established about sexual violence in the conflicts in the former Yugoslavia, as reflected in ICTY judgments.

This chapter draws upon the detailed description of sexual violence in ICTY cases set out in Annex A. This Annex contains a factual narrative of all findings relating to crimes of sexual violence in ICTY cases, divided by geographical area and perpetrator group. Specific incidents of sexual violence from the Annex are used in this chapter to highlight particular features of sexual violence that are evident throughout the cases.

The picture of sexual violence currently reflected in ICTY cases is necessarily a partial one. To begin with, several cases involving sexual violence at the ICTY are yet to be the subject of final judgments.5 More fundamentally, cases before the ICTY first (p. 300) and foremost aim to establish the individual criminal responsibility of the accused, rather than to create a comprehensive factual record. While the cases often contain broader findings that contextualize the charged crimes within the conflict, the creation of a historical record is not the ICTY’s primary function.6

Moreover, despite the significant volume of cases that have been prosecuted at the ICTY since the mid-1990s, proceedings against a finite number of individuals necessarily produce findings that only represent a snapshot of the mass atrocities and crimes committed. Findings entered in criminal cases are also confined to a limited pool of evidence and are structured around specific, charged crimes. For this reason the factual findings on sexual violence in ICTY judgments are usually limited to the discrete incidents that were established by the evidence beyond reasonable doubt, unless those discrete incidents provide a sufficient basis to infer that they formed part of a broader practice. In this respect, looking at a judgment in isolation may in fact have the perverse effect of conveying the impression that only a few isolated incidents of sexual violence occurred, when in fact the incidents contained in the cases are emblematic of a wider pattern.

For reasons discussed later in this chapter and elsewhere in this book, there are many reasons why the sexual violence committed in the conflicts in the former Yugoslavia may not be fully reflected in ICTY judgments. Overall, however, the picture of sexual violence that emerges from the cases is considerable, both in terms of its volume and multi-faceted nature. This chapter does not purport to provide a sociological analysis of sexual violence in the conflicts in the former Yugoslavia, nor a discourse on the myriad academic theories advanced to explain the causes or patterns of sexual violence in the former Yugoslavia, or in conflict settings more broadly. The analysis instead focuses simply on the factual picture emerging from the ICTY’s written judgments. Despite the circumscribed scope of this analysis, these judgments, taken collectively, constitute a valuable resource for discerning key characteristics that shed light on the nature and purpose of sexual violence in the conflicts. A number of these characteristics, from the commission of sexual violence in public or group settings through to the perpetration of sexual violence together with other forms of cruelty and humiliating treatment, are examined in this chapter.7

Despite the considerable insights provided by these judgments, it is also important for us to reflect on what might be missing from the picture of sexual violence that emerges from ICTY cases, as part of the process of drawing lessons for the future. This is inevitably a difficult task. It is not always easy to identify what has not been included in our cases. Furthermore, suspected omissions may not necessarily reflect prosecutorial shortcomings that need to be corrected, but may result from legitimate factors, such as the unavailability of suitable evidence or misinformation in other reports (p. 301) about sexual violence during the conflicts. Nevertheless, we have found it helpful to test the picture of sexual violence in ICTY judgments against external points of comparison, such as fact-finding reports, media accounts, and the conclusions conveyed through the Commission of Experts Final Report.8 This analysis has highlighted possible omissions involving particular types of sexual violence charges and modes of liability, as well as findings relating to geographical areas where sexual violence was widely reported to have occurred, but was not adjudicated in depth (or at all) in ICTY cases. While necessarily an imperfect process, this analysis is an important catalyst for reflecting upon how a more fulsome picture of sexual violence could be conveyed in future international criminal law judgments.

B.  Situating Sexual Violence as Part of the Conflicts in the Former Yugoslavia

As noted, the role of ICTY judgments is not to establish a historical record of the conflicts. However, they do contain numerous background and contextual findings, which shed light on the antecedents to the conflicts and the broader political and social factors contributing to the commission of crimes therein. The judgments offer a picture of the conflicts in the former Yugoslavia, precipitated by politically fuelled nationalistic sentiment. This contributed to the break up of the Socialist Federal Republic of Yugoslavia (SFRY) and the outbreak of devastating and protracted fighting, waged upon perceived ethnic lines.9 The judgments document how, throughout the various theatres of conflict, opportunities for territorial expansion were exploited, particularly by Bosnian Serb and Bosnian Croat forces who fought to gain and consolidate territory.10 While territorial ambitions were by no means unique to the Bosnian Serbs, these objectives were particularly apparent in the ‘Strategic Goals’ of the Bosnian Serb political leadership, which defined the course of the conflict—particularly in BiH—through the ambition of creating a unified Bosnian Serb State.11

The political, territorial, and strategic goals at the heart of the conflicts resulted in combat in which civilians were not merely affected incidentally—they were often (p. 302) the direct target of hostilities.12 A necessary corollary of consolidating territory along perceived ethnic lines was the ‘permanent removal’ of members of targeted ethnic groups.13 This was often achieved by the outright killing of civilians along with other physically destructive acts. These were accompanied by expulsion operations aimed at ethnically cleansing vast geographical areas, precipitated by violence and other criminal acts used to drive out the civilian population en masse.14

The combination of constructed ethnic divisions in the conflicts and the perceived centrality of the civilian population to the overarching military objectives resulted in the perpetration of crimes and atrocities that were particularly personalized and brutal in nature.

As will be discussed further in this chapter, sexual violence pervaded nearly every aspect of the conflicts. Sexual violence was perpetrated along ethnic lines to terrorize, punish, degrade, and humiliate. In particular, sexual violence was deeply interwoven into the process of ethnic cleansing perpetrated during forcible takeovers of towns and in prison settings, and used to instil fear into the civilian population, often resulting in civilians fleeing their homes as a result of a campaign of violent crimes.

C.  Characteristics of Sexual Violence as Reflected in ICTY Judgments

1.  Scale and prevalence of sexual violence

At the time of writing, convictions for crimes of sexual violence have been entered against twenty-nine accused in finalized ICTY cases.15 Although they provide only a vignette of the true extent of sexual violence committed in the former Yugoslavia, ICTY cases involving sexual violence have documented crimes committed in BiH, Croatia, and Kosovo, perpetrated by Bosnian Serbs and Serbians, Bosnian Croats and Croatians, Bosnian Muslims, Kosovo Albanians, and foreign fighters.16

The judgments provide a more complete picture in certain areas than others. In the municipality of Prijedor, investigations focused on three notorious detention facilities (Omarska, Keraterm, and Trnopolje) and the abuses perpetrated against the prisoners there. Alongside other forms of violence and torture, the judgments convey a horrific picture of rampant sexual violence perpetrated against inherently vulnerable prisoners, both male and female. Likewise, the municipality of Foča received particular (p. 303) attention, with the Kunarac et al. case focusing specifically on the practice of Bosnian Serbs taking Bosnian Muslim women as sexual slaves. In these areas, the notion of systematic and institutionalized sexual violence, which was widely reported in the aftermath of the conflict, is indeed borne out in the judgments.

Outside of cases that have concentrated closely on sexual violence at the direct perpetrator level, the picture is less detailed. Throughout the cases involving higher-level accused, discrete incidents of sexual violence are documented alongside other crimes, often as part of a broader criminal campaign, meaning comparatively less focus may be placed on the sexual violence crimes. However, stepping back and viewing the judgments as a whole, it is nonetheless apparent that these discrete incidents are representative of a broader pattern. Just as findings relating to discrete pockets of violence in different towns, when taken together, give a holistic picture of ethnic cleansing, the resultant picture that emerges from the discrete findings on sexual violence is more than the sum of its parts. Moreover, even when drawing upon discrete incidents, it is clear that sexual violence was deeply interwoven into the fabric of the conflict. Even when ‘systematic’ or ‘widespread’ sexual violence was not the focus of judicial findings, the fact that acts of sexual violence were perpetrated concomitantly with other acts of violence and persecution, demonstrated that these crimes often formed part of an overarching campaign.

2.  Situations in which sexual violence was perpetrated

The picture that emerges from the judgments illustrates that not only was sexual violence committed in virtually every geographical area during the conflicts, it was present in numerous conflict-related settings. From forcible takeovers of towns to prison facilities, sexual violence permeated a wide range of conflict scenarios. Far from being an incidental aspect of the conflict, sexual violence was an integral part of it.

The range of circumstances in which sexual violence occurred reinforces the understanding that it was not solely perpetrated by isolated individuals when the opportunity presented itself.17 Rather, it frequently featured alongside other forms of destruction, violence, abuse, and intimidation.

As conflict engulfed the former Yugoslavia, the spread of hostilities often followed a typical format, particularly in BiH. As reflected in numerous ICTY cases, the ‘takeovers’ of towns and municipalities was primarily achieved by military attack, and by the gradual consolidation of power through control of regional and local government structures, followed by an escalation of mistreatment of the target ethnic group carried out by military, police, and paramilitary forces.18 Members of the target ethnic group would be subject to increasing violence, intimidation, and mistreatment through crimes. They were frequently removed from the area by organized transport, (p. 304) terrorized into fleeing, or both. Amidst this process of ethnic cleansing, members of the target group were frequently imprisoned—often for lengthy periods of time.19 Sexual violence occurred in all aspects of the takeover, imprisonment, and forcible displacement continuum.

(a)  Sexual violence during takeovers and forcible transfer campaigns

The judgments provide examples of sexual violence perpetrated during the forcible takeover of towns and municipalities, or in the aftermath of a military attack where military forces entered the homes of the target ethnic group. For instance, in the Prijedor municipality in BiH, the Bosnian Serb Army (VRS), together with police and paramilitary groups, mounted an attack on villages and inhabited areas.20 During an attack against Hambarine village, Serb soldiers committed rapes while also killing inhabitants and torching houses. Some 400 villagers fled as a result of the violent attack.21

In another takeover example, Croatian Defence Council (HVO) forces attacked the area of Vareš in 1993, subjecting its inhabitants to a campaign of violence and intimidation. In Vareš town, two Muslim women were raped by HVO soldiers, in their own houses. One of the women also had her jewellery and money stolen. The other was raped by three soldiers in a particularly brutal manner.22 During the same period the HVO also attacked Stupni Do village. A 17-year-old Muslim girl was forced out of a hiding place during the searches and raped at gun-point by an HVO soldier before being released by the perpetrator for 100 German Marks. Another Muslim woman was sexually assaulted by an HVO soldier inside a house, before being taken outside and assaulted by another HVO soldier in front of other villagers.23

In Mostar in 1993, Bosnian Croats and Bosnian Muslims turned against each other and divided the town along ethnic lines.24 HVO soldiers expelled Muslim civilians from their homes to the Muslim side of the city. During these forcible removal operations, Muslim women were taken off the streets or out of their houses and raped by HVO soldiers, before being expelled.25 As such, sexual violence was inextricably woven into the expulsion campaign.

Women and girls were also raped and sexually assaulted during the violent mass expulsion campaign in Kosovo in 1999. Following the attack on Priština/Prishtinë (p. 305) town,26 Federal Republic of Yugoslavia (FRY)/Serbian forces expelled Kosovo Albanian residents from their homes.27 On 1 April 1999, a Kosovo Albanian woman was raped by two Serb men in camouflage uniforms and sexually assaulted by a third during a search of her apartment in Priština/Prishtinë. Only a few days later the woman and her husband were expelled by FRY/Serbian forces and had to board a train to the Macedonian border.28

Our cases demonstrate a heightened prospect of sexual violence during door-to-door searches, forced expulsions, and other scenarios where armed forces enter civilians’ homes. However, this is not to suggest that such crimes should be dismissed as merely ‘opportunistic’. The reality emerging from our cases is that activities such as house searches—whether purportedly looking for persons of interest or weapons—were often a pretext for harassment and the commission of persecutory crimes as part of a broader criminal campaign.29 As discussed in Chapters 6 and 7, we have learned the importance of contextualizing such crimes to demonstrate their role in a broader conflict, for instance when charging these crimes as underlying acts of persecution, or for the purpose of linking them to an overarching joint criminal enterprise (JCE).30 Demonstrating to trial chambers that door-to-door searches are often used as a pretext for violent criminal behaviour has been an important aspect of the contextualization process in some of our cases.31

While sexual violence has been perpetrated during forcible expulsion operations, it has also been one of the factors prompting the population to flee. In the Stanišić and Simatović proceedings, the Trial Chamber heard evidence that Croatian and Slovak families who departed from Ilok in the Serbian Autonomous District of Slavonia, Baranja, and Western Srem (SAO SBWS) cited crimes committed by Serb forces, including rapes, as a cause of their departure.32

Moreover, sexual violence was not only used as a catalyst to drive civilians from their houses and villages, but was also inflicted on victims while they were fleeing. In (p. 306) the midst of a massive expulsions operation in Kosovo in 1999, a Kosovo Albanian girl was taken off a convoy of people heading to Priština/Prishtinë and sexually assaulted by Serb forces, before being returned to the convoy.33 In the Stanišić and Simatović proceedings, the Trial Chamber heard evidence that a Muslim woman was raped during bussing operations being carried out by Serbian Volunteer Guard members in Sanski Most in September 1995.34

These cases have highlighted that sexual violence frequently occurs concomitantly with the commission of other crimes, during scenarios such as attacks on villages for forcible expulsion operations. A lesson we can draw from this experience, which may be of relevance to future situations and cases before the International Criminal Court (ICC), is the need for investigators to adopt a holistic approach in investigating a large-scale criminal campaign. While certain crimes, such as killings, mutilations, or the destruction of religious property may come to ‘characterize’ a criminal campaign, it is almost inevitable that crimes of sexual violence will also form part of it, even if the commission of these crimes are not as readily apparent at first glance.

(b)  Sexual violence in prison settings

Despite the many instances of sexual violence occurring during takeover and expulsion campaigns, the vast majority of incidents of sexual violence documented in ICTY cases have occurred in prison-type settings. This trend accords with the Commission of Experts Final Report, which found that over half of all reported incidents of sexual violence occurred during imprisonment.35

It is possible that the apparent prevalence in ICTY judgments of sexual violence in prisons, over other locations, presents a skewed picture. As discussed in Chapter 3, misconceptions that sexual violence outside of imprisonment—for instance in the midst of forcible transfer operations—is more likely to be random, meant it may have received comparatively less attention at the investigation stage than sexual violence during imprisonment.36 As discussed in Chapter 5, it may also reflect an investigatory perception—and the OTP’s own experience—that crimes of sexual violence are easier to establish in prison settings due to the large number of witnesses who can potentially provide mutually supporting evidence.37 Finally, as a matter of intuition, prison sites naturally invite inquiry into abuses perpetrated against prisoners; the evidence gathered may simply be the result of pursuing obvious lines of inquiry.

(p. 307) However, beyond the effects of investigative strategies and priorities, the volume of prison-related cases involving sexual violence undoubtedly also reflects the reality of imprisonment and its role in the conflicts—where inherently vulnerable civilians were held at the tyranny of their captors and perpetrators had ready access to victims. That said, increased ‘access’ to victims does not compel the conclusion that the sexual violence perpetrated in prison settings in the former Yugoslavia was merely borne out of opportunity and committed by wayward guards. Rather, the picture that emerges is of sexual violence perpetrated so systematically in prison settings that it represented—if not an institutional policy—certainly a widespread practice. This practice was permitted, and arguably encouraged, at high levels.38

ICTY cases have confirmed the prevalence of sexual violence in prison settings, ranging from large scale concentration camps through to makeshift prison sites set up in municipal buildings such as cultural centres, schools, or hospitals. This included the three notorious prison camps run by Bosnian Serb forces in Prijedor municipality referred to above: Omarska, Keraterm, and Trnopolje. Prisoners in these camps were subjected to sexual violence on a continual basis. Bosnian Serb camp guards removed non-Serb women from the rooms where they were held at Omarska camp on a regular basis and raped them, sometimes multiple times and sometimes multiple guards were involved.39 The sexual violence in the camps was characterized by extreme violence and brutality. One woman at Keraterm camp testified to being raped until she lost consciousness and awoke the next morning in a pool of blood.40

The rampant sexual violence committed in prisons was not limited to Bosnian Serb perpetrators. The Čelebići camp was run by Bosnian Muslim and Bosnian Croat authorities in Konjic municipality. Serb prisoners, both male and female, were subject to deplorable acts of sexual violence and torture. Female prisoners reported being subject to multiple rapes, including during violent interrogation sessions.41

The picture emerging from ICTY cases is that, amidst the deplorable living conditions in prisons and alongside other forms of mental and physical violence perpetrated against detainees, sexual violence perpetuated a climate of extreme fear and insecurity amongst prisoners.42

As noted, sexual violence occurred not only in established ‘camps’, but also in temporary prison facilities where civilians were rounded up for interrogation, or pending transfer. Such locations discussed in ICTY judgments include Rogatica secondary school, where guards raped, beat, and tortured Muslim prisoners;43 a military (p. 308) barracks, a bunker, and a house in Vogošća municipality, where male Muslim prisoners were subject to sexual violence and humiliation;44 a community centre in Čelopek, Zvornik, where Serb paramilitary groups arrived and subjected male Muslim inmates to forced sexual conduct with their family members and mutilated them;45 and the Dubravica primary school in Vitez where the HVO imprisoned civilians and members of the Military Police raped Muslim women.46

A further distinction can be drawn between sexual violence perpetrated against prisoners already held in established prison centres and situations where sexual violence was the sole purpose for imprisonment.47 Outside of camps and ad hoc prisons, sexual violence was perpetrated, amongst other locations, in private residences where women were subject to repeated rapes, traded between soldiers and forced to carry out domestic duties. As mentioned, this model of enslavement formed the focus of the Kunarac et al. case, relating to events in the Foča municipality, which became synonymous with the notion of sexual slavery.

While imprisonment is commonly associated with being held in a discrete prison or other facility, ICTY cases also highlight the vulnerability of civilians to sexual violence when their towns have been overrun by enemy forces, rendering them in a state of de facto imprisonment. One such example is Rotilj village in Kiseljak municipality. After HVO forces violently took control of the Municipality, Croat troops pillaged and torched houses and terrorized the Muslim inhabitants of the towns.48 One witness testified that the whole town of Rotilj had become like a concentration camp, with HVO soldiers free to come as they pleased, raping Muslim women at night.49 The Blaškić Trial Chamber considered that—especially given the snipers positioned in the hills surrounding the village—the entire village had ostensibly become an HVO ‘detention camp’.50

3.  Characteristics of sexual violence

While sexual violence was perpetrated during the conflicts in myriad circumstances, a number of common threads emerge through the judgments. These recurring characteristics provide further insight into the nature and role of sexual violence during the conflicts, including its deliberate ‘use’ as a means to degrade, dehumanize, splinter, and destroy a perceived ethnic group.

(a)  Sexual violence and interrogation

Throughout the conflicts, sexual violence was used like other forms of violence and intimidation to threaten, extract information, and punish victims. In this respect, the (p. 309) judgments highlight a number of instances of sexual violence that occurred during, or associated with, interrogations. In the Čelebići camp, Duty Camp Commander Hazim Delić raped numerous women, including one woman following an interrogation regarding the whereabouts of her husband.51 Miroslav Bralo, a member of the HVO’s Military Police battalion’s ‘Jokers’ detachment, repeatedly raped a Bosnian Muslim woman in Nadioci while she was being interrogated by Jokers’ commander Anto Furundžija.52 The threat of rape was used against a Roma woman during interrogation by Serb paramilitary forces about Croats from her village.53 In Kosovo, a Kosovo Liberation Army soldier raped a woman after half an hour of interrogating her about whether her husband had collaborated with the Serbian police, as a means of intimidating and/or punishing her.54

(b)  Sexual violence perpetrated in front of others

Our cases demonstrate that sexual violence was used to instil terror and shame, both in individual victims, and within their wider group. As discussed in Chapter 5, we found that within imprisonment contexts, there were some differences between how sexual violence was perpetrated against males and females. In particular, women were more frequently ‘taken away’ and subjected to sexual violence in private; often being threatened to keep silent about the abuse they suffered.55

However, the use of sexual violence for ‘public shaming’ is also evidenced in the cases through the frequent use of sexual violence in front of other members of the target ethnic group, including fellow prisoners, other village inhabitants, or in some cases family members. For example, in an incident at the Omarska camp, an armed man entered the area where prisoners were eating, uncovered the breast of a female prisoner and ran a knife along it for several minutes while other prisoners watched in fear.56 Other instances documented in the cases include: Muslim and Croat prisoners at the Batković camp in Bijeljina being forced to engage in degrading sexual acts in front of each other;57 a Muslim woman being stripped by HVO soldiers in Stupni Do village and having her breast grabbed in front of other villagers before being forced to undress in the street in front of other Muslims;58 and young Muslim women in Podgrađe being forced by HVO soldiers to strip to music, serve them naked, and undress in front of their fathers.59

(p. 310) Forcing individuals to witness the sexual violation of family members, or forced sexual conduct between relatives, was used as a particularly horrific form of abuse. Numerous examples appear in the cases, including: a Muslim woman being raped in front of her husband and father-in-law by HVO soldiers in Mostar;60 Čelebići camp guard Esad Landžo forcing two Serb brothers to commit fellatio in front of other prisoners;61 and Serb members of the ‘Red Berets’ police unit forcing a Muslim prisoner to witness the rape of his wife at a police station in Gacko.62

Not only was sexual violence perpetrated in front of other members of the victim group, it also occurred in front of other members of the perpetrator group. In this respect, sexual violence also appeared to serve to embolden the perpetrator group and consolidate their sense of collective power—condoning and encouraging violence within the group and reinforcing a sense of group superiority. In the Serb-run Luka camp in Brčko, Ranko Češić, a member of the Bosnian Serb Police Reserve Corps, forced two Muslim brothers to sexually assault each other in the presence of several guards who were watching and laughing.63 Bosnian Muslim and Bosnian Croat prisoners at Kotor Varoš police station were forced to perform sexual acts on each-other in front of a crowd of cheering men in Bosnian Serb police and military uniforms.64 The Bosnian Muslim woman raped by Miroslav Bralo (referred to above) was forced to be naked in front of approximately forty soldiers during her interrogation and assault.65

(c)  Ethnic motivations expressed by perpetrators

While an undercurrent of ethnic animus can be inferred from many incidents of sexual violence, in several instances in the ICTY judgments the ethnic motivations are readily apparent from the comments of the perpetrators. Ranko Češić, a member of the Bosnian Serb Police Reserve Corps in Brčko, raped a Muslim woman taken from Luka camp, telling her it was a pleasure to have one more ‘Balija’ woman to rape.66 Dragoljub Kunarac, who took Muslim women to privately owned residences in Foča where they were kept as sexual slaves, told a victim during one rape that raping Muslim women was one more way the Serbs could assert their superiority over the Muslims.67 During another incident he told his victim she should enjoy being ‘fucked by a Serb’.68 In Prozor, a Bosnian Muslim woman was raped repeatedly by two HVO soldiers, one of whom told her ‘[y]ou didn’t do anything wrong, your only fault is that you are Balijas’.69 In 1999 during the mass expulsion campaign in Kosovo, a Kosovo Albanian woman was (p. 311) sexually assaulted by a soldier who taunted her with statements such as ‘[s]o, you want a republic, you want independence’.70 Another Kosovo Albanian woman was raped by four soldiers in front of a police officer and others. When she left, the police officer said ‘the [Kosovo Liberation Army] did worse than they are doing. You can handle them’.71

The use of sexual violence to diminish and dehumanize a particular group is evident not only from overt ethnic epithets, but also through the targeting of specific members of the community. In Omarska camp in Prijedor, many of the non-Serb women imprisoned were prominent members of the community.72 At Luka camp, Ranko Češić bragged about raping seventy or eighty women, and stated that upper-class Muslim women were specifically being targeted. He boasted that the women who used to be ‘ladies’ were now nothing.73

As an office, we have seen the effectiveness of presenting evidence of a perpetrator’s ethnic motivations, through their simultaneous utterances, or other records. For future cases under international criminal law, where such evidence can be obtained, it can play an important role not only for establishing discriminatory intent for the crime of persecution, but for contextualizing the crime and placing it within the broader conflict or connecting it to a broader campaign.

(d)  Degrading and humiliating treatment

Finally, much of the sexual violence that emerges through the judgments is characterized by its particular cruelty towards the victims and humiliating effect. This further reinforces the notion that sexual violence was not simply inflicted for sexual gratification, but to de-humanize and diminish the targeted group. A female Muslim in Bosanski Šamac was forced to lie naked on a table at the police station, while five uniformed men beat her, and then one urinated on her.74 After the interrogation of a Muslim woman by Anto Furundžija and Miroslav Bralo, discussed above, the woman was raped by the mouth, vagina and anus before Bralo repeatedly ejaculated on her body.75 (p. 312) In Mostar, a male Bosnian Muslim prisoner was forced by HVO soldiers to drink urine before being sexually assaulted.76 Also in Mostar, after HVO soldiers had raped a Muslim woman in front of her family members, she was forced to lick a soldier’s boots.77

As discussed further below, sexual violence against males was also frequently characterized by particular cruelty including acts of genital mutilation.

4.  Range of victims

(a)  Age of victims

As depicted in the judgments, sexual violence was perpetrated against victims of all ages, from children through to the elderly. In Foča, a twelve-year-old girl was amongst the female victims kept as sexual slaves by local Serb soldiers.78 A thirteen-year-old girl was amongst the many women and girls raped by Serb soldiers in Pilana sawmill in Kotor Varoš.79 In Trnopolje camp in Prijedor, girls between sixteen and nineteen years old were said to be at the greatest risk of sexual assault, although girls as young as thirteen were also subject to sexual violence there.80 Another prisoner attested to providing treatment and counselling to rape victims at the camp including a girl as young as twelve.81

While the judgments certainly demonstrate that young girls were not spared from sexual violence, they do not reflect accounts contained in the Commission of Experts Final Report, which recounted instances of rape against children as young as seven years old. The Final Report recites one incident in ‘Sonja’s Kon Tiki restaurant’ in Vogošča, dubbed one of the region’s most notorious ‘Rape/Death camps’, where two children, aged seven and thirteen, were allegedly raped in front of their parents by twenty Serb perpetrators. The Final Report stated that neither child survived.82

At the other end of the spectrum, the elderly were also subjected to sexual violence and humiliation. The Gotovina et al. Trial Chamber heard evidence that during ‘Operation Storm’ in 1995, Croatian soldiers forced a seventy-three-year-old Serb woman to strip to her underwear and play basketball with an elderly neighbour, calling her a ‘Chetnik whore’.83 In the Omarska camp in Prijedor, an elderly man was killed after he refused to rape a young girl.84

(p. 313) (b)  Female victims

The majority of sexual violence related incidents documented in ICTY judgments have involved crimes perpetrated against females. These include vaginal and anal rape, forced oral sex, and other forms of sexual assault, as well as sexually degrading or humiliating acts, such as being forced to strip naked in public, or dance naked for the amusement of guards. Frequently, acts of sexual violence against females were accompanied by other forms of physical violence, such as the use or threat of weapons. As discussed above, incidents of rape and sexual assault were perpetrated during forcible takeovers of towns, house-to-house searches, during the forcible transfer of civilians, and in prison settings.

One form of sexual violence that has emerged through ICTY judgments as being unique to female victims is the use of sexual violence, at times accompanied with forced domestic servitude, as a form of enslavement. As discussed, the municipality of Foča in central BiH became synonymous with the notion of sexual violence leading to enslavement, as depicted in the Kunarac et al. case. Women and girls were held by local soldiers at many sites, including private apartments, where they were subjected to continual sexual violence, often over the course of weeks or months. The victims were also required to cook and perform domestic chores, and were traded as chattel between the soldiers or ‘sold’ to other men.85 The notion of forcing women to ‘serve’ enemy forces was also seen in the Prlić et al. Trial Judgment where Muslim women in Podgrađe were humiliated by the HVO and Military Police, who forced them to undress to music and serve them naked.86

(c)  Male victims

There are a substantial number of documented incidents of sexual violence perpetrated against males in ICTY cases.87 Through the judgments, a picture emerges of sexual violence being used against males—particularly in prison settings—as a form of punishment, belittlement, and demoralization. In particular, sexual violence against males, as seen through the cases, is typically perpetrated in group settings, subjecting victims not only to the abuse itself but also to having others in their community, or even family, bear witness to it. For instance, in the town of Prozor, Croatian HVO forces imprisoned Muslims at the Prozor High School. In August 1993, over the course of several nights, guards forced five prisoners to perform fellatio on each other in front of the other prisoners.88

In other examples, men were forced to carry out sexual acts with family members. Luka camp in Brčko, run by Serb forces, was a prison facility where male inmates were frequently abused. In one instance Ranko Češić forced two Muslim brothers to beat each other then perform fellatio on each other, in the presence of several guards watching and laughing.89 In Zvornik municipality, the ‘Čelopek Dom’ was used as a (p. 314) prison facility from May to July 1992 and prisoners detained there were routinely mistreated. In one instance, the Yellow Wasps paramilitary group forced a group of male prisoners to strip, and two pairs of fathers and sons, and two cousins, were made to perform sexual acts on each other.90

Incidents of sexual violence against males have also been coupled with other forms of extreme violence and humiliation, at times involving genital mutilation or other forms of torture. Such examples of sexual violence perpetrated against men reinforce the understanding that sexual violence in conflict is not correlative with sexual gratification. Rather, it appears to be used as a form of asserting power, shaming, and emasculating. In Konjic munipality, the ‘Čelebići’ camp was established by Bosnian Muslim and Croat forces. Camp guard Esad Landžo abused a male Serb prisoner by putting a burning fuse against his bare genital area.91 Abuses committed by the Yellow Wasps paramilitary group, referred to above, also included cutting off the ears or penises of prisoners and forcing other prisoners to ingest them. Those who refused were killed.92

Sexual violence was rife in the prison camps in Prijedor municipality, including against male prisoners. In one instance in the Omarska camp, Duško Tadić, President of the local (Kozarac) board of the SDS, was present during an incident in which two male Muslim prisoners were forced to perform oral sex on each other, with one ultimately being forced to bite off the testicle of the other, in front of cheering soldiers.93

Physical assaults of male victims directed at the genitals also feature a number of times in other ICTY cases.94 In one example, Chief of Police in Bosanki Šamac municipality, Stevan Todorović, beat a male prisoner in the genitals and told him Muslims should not propagate.95

A number of ICTY cases have noted the role of sexual humiliation in the context of sexual violence against men. In Mostar in 1992, Muslim prisoners were abused at the military base of Vinko Martinović, a Bosnian Croat unit commander. Martinović ordered the beating of a male prisoner, who (as referred to above) was then forced to drink urine from empty beer cans. One of the soldiers then forced his penis into the prisoner’s mouth and asked him whether he liked it.96 In Vogošća municipality, (p. 315) Muslim and Croat prisoners held at ‘the Bunker’ were subjected to sexual humiliation. In one instance, a Muslim prisoner was forced to undress and jump off a wall flat onto his front. He and another inmate, both naked and bruised, were ordered to rape each other, although they did not comply.97

5.  Range of perpetrators

Several ICTY cases have focused upon direct perpetrators, as well as those who closely encouraged or assisted in the commission of sexual violence. ICTY cases have also examined the responsibility of senior military and political leaders for crimes of sexual violence through modes of responsibility such as command responsibility and joint criminal enterprise liability. Together, these cases provide insight into the circumstances in conflict in which sexual violence routinely occurs, as well as the political and military strategies that fuel an ethnically constructed campaign of criminal activity, in which sexual violence is prevalent.

(a)  Direct perpetrators and those closely associated

There are a number of ICTY cases in which the accused were the direct perpetrators of sexual violence. Unsurprisingly, the vast majority of direct perpetrators have been members of the armed forces who had the most exposure to, and interaction with, potential victims. This has included police and military personnel involved in the takeovers and subsequent control of towns, paramilitary forces, and camp guards and commanders in prison settings. Direct perpetrators include the three accused in the Kunarac et al. case, as well as Dragan Zelenović who also personally perpetrated rapes and facilitated the abuse of other women and girls in Foča. Ranko Češić was convicted for directly perpetrating rapes in the Luka camp. In relation to the Prijedor camps, two of the five accused in the Kvočka et al. case were convicted for direct perpetration of sexual violence in the camps.98 Miroslav Bralo pleaded guilty to raping and assaulting a Bosnian Muslim woman during a brutal interrogation conducted by Anto Furundžija, who was also convicted for his role in this incident. Mladen Naletilić, commander of the Bosnian Croat ‘Convicts’ Battalion’ based around Mostar, was convicted for his role in an assault on a male prisoner, which included an assault to his genitals. Steven Todorović pleaded guilty to a range of conduct, including his direct participation in sexual violence against prisoners in Bosanski Šamac. Duško Tadić was convicted for his contribution to an incident where male prisoners at the Omarska camp were forced to commit sexual acts and mutilate each other.99 Other direct perpetrators were transferred to BiH for prosecution under Article 11bis of the ICTY Rules of Procedure and Evidence.100

(p. 316) However, perpetration of sexual violence was not solely limited to those with the easiest access to victims. Cases have also documented incidents of military or law enforcement officials allowing civilians and outsiders to enter villages or prison-type facilities specifically to enable them to access victims. For instance, in Vogošća municipality, Muslims and Croats were imprisoned in Planjo’s house in Semizovac. Aside from the abuse that prisoners suffered from the guards, Serb persons regularly came from Serbia on the weekends to beat the prisoners and force them to perform sexually humiliating acts.101 Likewise, in the village of Podgrađe, Muslim women and girls were imprisoned by HVO forces and military police, who raped and sexually assaulted the women. In addition, these forces allowed men from outside the village to enter Podgrađe to perpetrate rapes.102

Other ICTY cases have been brought against accused who were not direct perpetrators, but were closely connected to the perpetration of abuse. For instance, in the Delalić et al. case, Deputy Camp Commander Hazim Delić and camp guard Esad Landžo were convicted for their direct role in sexually abusing prisoners, while Camp Commander Zdravko Mucić was convicted as a superior.

(b)  Higher-level accused

Many ICTY cases have been against higher-ranking military or political leaders as accused, rather than direct perpetrators, reflecting the ICTY’s mandate to try those ‘most responsible’ for crimes committed during the conflict.103 As discussed in Chapter 7, modes of liability such as superior responsibility or JCE have been utilized to reflect the responsibility of such individuals for crimes perpetrated by their subordinates, or as part of a criminal campaign to which they contributed. Biljana Plavšić is an example of a ‘higher-level’ accused convicted of crimes including sexual violence. Plavšić was a prominent Bosnian Serb politician who held the position of Co-President in what would ultimately become the self-proclaimed Republika Srpska. Plavšić pleaded guilty to one count of persecution, which incorporated a vast number of crimes committed against non-Serbs, from killings and destruction of cultural property through (p. 317) to sexual violence committed in prisons and during forcible takeovers.104 These crimes were an integral part of the overarching political strategy to permanently remove Bosnian Muslim, Bosnian Croat, and other non-Serb inhabitants from large areas of BiH.105

The Stakić case provides another example of a senior leader prosecuted for crimes of sexual violence through the JCE framework. Stakić, head of the Prijedor municipal Crisis Staff, was found to be part of a joint criminal enterprise, which encompassed a ‘discriminatory campaign to ethnically cleanse the Municipality of Prijedor by deporting and persecuting Bosnian Muslims and Bosnian Croats in order to establish Serbian Control’.106 Inherent in this criminal plan was the creation of an environment of fear that would force non-Serbs to flee, achieved through a campaign of persecution.107 Stakić played an active role in the creation of the Prijedor prison camps.108 The treatment of non-Serbs in those camps, including the perpetration of sexual violence, was an integral component of the persecution campaign.109 In this way, Stakić, a senior political figure, was linked to the perpetration of sexual violence, through the role it played in the overarching criminal campaign he contributed to.

Senior Serbian political and military figures in the Šainović et al. and Đorđević proceedings were found responsible for sexual violence committed during the mass expulsion campaign in Kosovo in 1999 on the basis that it was a foreseeable consequence of the violent operations to forcibly expel Kosovo Albanians (JCE (Category 3)).110 Similarly, in the Prlić et al. proceedings, although the Trial Chamber did not find that rape and inhuman treatment (sexual assault) fell within the common criminal purpose of the JCE, it treated certain proved crimes of sexual violence as JCE (Category 3) crimes, in that they were a foreseeable consequence of the campaign to expel Muslims from Croat-claimed territory.111

At the time of writing, former Commander of the Main Staff of the VRS, Ratko Mladić, and former President of the Bosnian Serb Republic and VRS Supreme (p. 318) Commander, Radovan Karadžić, also face charges for sexual violence, committed as part of an alleged overarching criminal enterprise to permanently remove Bosnian Muslims and Bosnian Croats from Bosnian Serb-claimed territory in BiH. Sexual violence has also been charged as an underlying act of genocide committed in designated municipalities.112 As discussed in Chapter 5, the OTP has tendered evidence in the Mladić proceedings to show that Mladić had personal knowledge of individual victims of sexual violence, stemming from an entry in his personal diaries outlining a meeting with Slobodan Milošević. This entry names two women who witnesses had testified were held in Foča as sex slaves.113

Higher level accused have also been linked to crimes of sexual violence through other modes of liability. Radoslav Brđanin, a high-ranking political leader in the ‘Autonomous Region of Krajina’ was found guilty of aiding and abetting the commission of sexual violence in the takeover of various municipalities, based on the assistance he provided through his political leadership position. In particular, decisions taken by Brđanin in relation to disarmament had the effect of creating an imbalance favouring Bosnian Serbs, which in turn assisted Bosnian Serbs to attack non-Serb towns and perpetrate a range of crimes therein.114

(c)  Implications of the ‘pyramid model’ of prosecutions for the picture of sexual violence

Because the ICTY has a conflict-specific mandate, with all of its cases arising out of a defined geographical area and confined time span,115 it has produced a body of judgments with substantial factual overlap between cases. This has meant that ICTY judgments have been able to explore the conflict from a number of different angles, focusing on different perpetrator groups and accused persons at different levels of seniority. As a result, the cases, when taken as a whole, present a record of the conflict of substantial depth and breadth, despite the constraints inherent in any judicial mechanism.

The OTP’s earlier method of investigations and prosecutions has often been described as a ‘pyramid’ model. The OTP’s approach of starting with investigations into direct perpetrators and lower-level accused had the effect of laying a strong evidentiary and jurisprudential basis that future cases could build upon.116 For example, the ongoing (p. 319) case against Radovan Karadžić, former President of the Republika Srpska, relies on a substantial body of evidence, much of which has already been presented and tested in other cases involving lower level accused.117 Furthermore, as discussed in Chapter 5, Trial Chambers at the ICTY may take judicial notice of ‘adjudicated facts’—facts that have been litigated and established in previous cases. While adjudicated facts may be limited in scope and primarily relate to contextual matters, they can also include findings relating to the commission of crimes and perpetrator groups.118 Viewed through the prism of the pyramid approach, adjudicated facts have the potential to be a helpful mechanism for building an evidentiary foundation. Prosecutors can then focus their limited resources on proving the role of higher-level accused persons and their links to the crimes committed.119

The pyramid approach has implications for the picture of sexual violence that emerges through ICTY jurisprudence. By initially focusing on direct perpetrators, the OTP was able to present the evidence relating to crimes of sexual violence at a focused and detailed level with a significant amount of victim witness testimony. In considering the ICTY’s legacy and the record of the conflict depicted through the judgments, direct perpetrator cases convey a close understanding of the brutal realities of the conflict and the direct experience of victims. They also shed light on the actions and motivations of those who perpetrated crimes.

Moving up the pyramid to higher-level accused, the cases provide insights into the political forces and military strategies that fuelled the conflict and in turn led to the commission of crimes on the ground. Higher-level cases also demonstrate how the failure of military and political leaders to respond to reports of crimes entrenches a culture of impunity. The Krajišnik Trial Chamber heard evidence that in mid-1992 politician Biljana Plavšić, referred to above, discussed with other senior political leaders (p. 320) the issue of sexual violence crimes being committed by an armed group headed by a man called ‘Batko’. The response of the senior leaders was one of indifference, with Assistant Minister of the Interior Momčilo Mandić smiling and saying ‘Oh, Batko’. Batko was found to have raped at least three women during house searches in the same time frame.120

The impact of high-level officials in perpetuating an environment that tolerates and encourages criminality is also evident from the Prlić et al. Trial Judgment. The Prlić et al. Trial Chamber found that in October 1993, HVO Commander Slobodan Praljak ordered HVO forces in the areas of Vareš to ‘sort out the situation in Vareš showing no mercy to anyone’. This order was interpreted as a licence to act with impunity. In the following weeks, HVO soldiers raped and sexually assaulted Muslim women in Vareš town.121

A necessary corollary of the pyramid approach to prosecutions is that, in leadership cases, a greater emphasis is placed upon proving the existence of a higher-order criminal campaign and the accused’s link to it. Comparatively less emphasis is placed on establishing the details of crimes on the ground (particularly if adjudicated facts are relied upon). Thus, as we move further away from the direct perpetrators, we gain insight into the overarching political and military driving forces behind mass atrocities. However, commensurately, we may lose focus on the minutiae, including the day-to-day experiences of victims in conflict. It is only when we take the body of jurisprudence as a whole, from cases focusing on camp guards and commanders through to senior military and political figures, that we get a more holistic picture of sexual violence.

D.  Missing Pieces of the Picture?

Two decades of written judgments have provided a valuable resource for identifying trends and common characteristics of sexual violence in the conflicts. From conveying the individual experiences of victims, through to situating sexual violence within the broader conflict-related framework, ICTY cases play an important role not only in establishing individual criminal responsibility for sexual violence crimes, but also in ‘painting the picture’ of sexual violence and bringing increased visibility to this aspect of the conflicts.

The findings contained in the judgments also provide a basis for us to reflect upon what might be missing from this picture, and why. In this section, we consider some areas where the judgments do not convey the findings on sexual violence that may have been expected, given the accounts emanating from other reporting bodies. As the ICTY nears the end of its mandate and we consider issues of legacy, reflecting on (p. 321) possible omissions from our cases is a necessary and important process. Looking forward, lessons learned from the ICTY experience may also prove instructive for other institutions, such as the ICC, dealing with similar issues.

One useful benchmark for comparison is the Final Report of the Commission of Experts. As discussed in earlier chapters, the Final Report was provided to the ICTY in 1994 and the findings therein set the foundations for future OTP investigations.122 The Final Report contained a separate Annex dedicated exclusively to crimes of sexual violence. Aside from the Final Report, media reports, and reports emanating from human rights bodies, non-governmental organizations (NGOs) and other monitoring organizations also provide useful points of comparison.

In many respects, ICTY cases on sexual violence have reflected the early findings of the Commission of Experts. For reasons discussed above, the sheer scale of sexual violence reflected in the report is not captured in ICTY jurisprudence, due in part to the ICTY’s focus on individual criminal responsibility rather than fact-finding and the creation of a historical record per se. Differences in mandate notwithstanding, there are some material differences between the Final Report and the picture of sexual violence that emerges through ICTY cases. Similarly, with respect to areas and phases of the conflict not covered in the Final Report, ICTY cases do not necessarily reflect the reports of sexual violence reported by other investigative bodies or portrayed in the media. Reflecting on these differences helps us to distil insights into our past practice and identify lessons learned for the future.

1.  Geographical locations missing from the picture or with limited emphasis

Certain geographical areas in which the Commission of Experts found numerous reports of sexual violence have received little emphasis in ICTY cases. Sarajevo and Višegrad are notable examples. The conflict in Kosovo in 1999 likewise sparked reports of the widespread perpetration of sexual violence, the scale of which has not been reflected in the ICTY’s Kosovo judgments. The events in Srebrenica and in Vukovar provide further examples where media and human rights reports documented rape, yet sexual violence has not been a common feature in our cases focusing on those areas.

These apparent lacunas in the cases on sexual violence have a number of possible explanations. As discussed in more detail in previous chapters, a combination of factors including investigative strategies, resource limitations, access to evidence, and prosecutorial priorities have led to a greater focus on crimes of sexual violence in certain theatres of the conflict and less so in others.

(p. 322) Beyond these readily apparent factors, there is perhaps also a natural inclination towards grouping crimes in a manner that fits with a central case theory or narrative, defined by key characteristics or dominant themes. Within the OTP, this can be seen in our own colloquial terminology, with phrases such as ‘the camp cases’ or ‘the takeovers’ being used as shorthand to describe certain clusters of cases or patterns of crimes. In line with this understandable tendency to group events thematically, cases relating to Sarajevo have focused almost entirely on the unique attributes of that pocket of conflict—the campaign of shelling and sniping that defined the ‘siege’. However, the very nature of the ‘siege of Sarajevo’—where a major urban centre was subject to a violent military campaign for years while thousands of inhabitants remained trapped within the city—immediately raises the prospect of sexual violence perpetrated against the civilian population. Indeed, the Commission of Experts Final Report referred to hundreds of reported rapes in Sarajevo, with victims and perpetrators on both sides of the conflict. In particular, the Final Report referred to rampant sexual abuse in prison facilities in Sarajevo, including the imprisonment of Bosnian Muslim women by Serb forces specifically for the purpose of rape. In the area of Vogošča, there were reports of mass rapes of young teenagers, and the establishment of one of the region’s ‘most notorious “Rape/Death camps”’. Despite such reports, ICTY cases prosecuting crimes perpetrated in the siege of Sarajevo have focused almost exclusively on the campaign of shelling and sniping.123

Similarly, the events at Srebrenica have become synonymous with the mass execution of men and boys and the commensurate forcible transfer of remaining Bosnian Muslims from the enclave, which has formed the central aspect of the ICTY’s Srebrenica cases. Contemporaneous and subsequent reports from the media and human rights organizations referred to the perpetration of sexual violence crimes in Srebrenica, both during the takeover of the enclave and the forcible removal operation from Potočari that followed.124 Indeed, the humanitarian catastrophe at neighbouring Potočari—where tens of thousands of vulnerable displaced civilians sought protection from Bosnian Serb forces, and where women were separated from men before being bussed out of Bosnian Serb-controlled territory—intuitively raises the spectre of sexual violence in the Srebrenica enclave. However, while the ICTY Srebrenica judgments generally refer to the atmosphere of terror at Potočari and the ‘rumours’ of rapes that contributed to this atmosphere, the Krstić Trial Judgment is the only one to consider (p. 323) that the commission of rapes expressly formed part of the terror campaign perpetrated against those taking shelter at Potočari.125

Likewise, Vukovar in Croatia is another area where there were numerous reports of sexual violence being committed in the conflict, yet this has not thus far been reflected in our cases. A number of cases prosecuted domestically in Croatia alleged rape and other forms of sexual violence during the violent takeover of Vukovar and surrounding areas by members of the Yugoslav National Army (JNA), paramilitary groups, and the territorial defence in 1991.126 The International Court of Justice, in its decision on the application of the Genocide Convention in the case between Croatia and Serbia,127 referred to the perpetration of sexual violence in Vukovar. This included a finding that acts of rape were perpetrated against Croats by JNA and Serb forces during the capture of Vukovar and in the surrounding area, including Velepromet.128

The ICTY’s first adjudicated case concerning crimes committed following the fall of Vukovar was Mrkšić et al.129 The case focused on an incident in which non-Serb prisoners were taken by the JNA from the Vukovar hospital, where they were seeking refuge, to a JNA compound and then to nearby Ovčara farm.130 The prisoners were subject to severe beatings and mistreatment131 and ultimately, at least 194 of them were executed at Ovčara farm and buried in a mass grave.132 Sexual violence was alleged (p. 324) to have occurred amongst the torture, beatings, and psychological assault inflicted against the prisoners during this episode (the Prosecution alleged, in particular, one incident of sexual assault against a female prisoner).133 However, the Trial Chamber found that the Prosecution had failed to establish that any sexual violence occurred.134

The Mrkšić et al. case provides another example of a case focused upon a singular incident, unified by a common narrative: the mass killings at Ovčara. While such a focused approach to investigation and prosecution has practical benefits, and may be the most appropriate approach in light of the level, role, and responsibility of the accused, the focus on singular incidents can result in the neglect or de-prioritization of other serious crimes committed in the same area. In contrast, however, the case against Serbian nationalist politician Vojislav Šešelj also charges crimes committed in the Ovčara farm incident, but includes broader allegations relating to the fall of Vukovar and the subsequent expulsion of the non-Serb population.135 The Prosecution has argued in the Šešelj case that expulsions from the Vukovar area ‘came after significant abuse, detention and, in some cases, rape’.136 The trial judgment in the Šešelj case is pending.

The tendency to focus investigations and structure prosecutions around what are perceived as the ‘core crimes and dominant narratives’ may be driven by quite legitimate goals. These include efficiently deploying limited investigative resources and presenting a coherent and unified theory of the case in a compelling and concise manner. However, such an approach undoubtedly also risks overlooking other serious crimes which do not form part of the dominant theme, thus perpetuating the lack of accountability for crimes of sexual violence in international criminal law. Putting aside detention settings and ‘rape camp’ scenarios, given the nature in which sexual violence crimes are often perpetrated in conflict settings (for instance, during house-to-house searches), there is a persistent risk that even numerous incidents of sexual violence would not ‘stand out’ in the same way that a single, ‘public’, massacre would.

Indeed, it may simply be the case that the sheer scale of particular crimes, such as the mass executions of thousands of men and boys at Srebrenica, is so overwhelming that other crimes seem dwarfed and insufficiently serious by comparison. In line with our mandate and given our limited resources and the pressure to present streamlined (p. 325) cases, inevitably, the OTP has been faced with the task of prioritizing certain crimes over others, taking into account their perceived gravity, among other factors. However, it is important to ensure we are not blinded by a singular focus on what are perceived to be the most horrific events. Our goal should be to structure investigations and charges in a manner that accurately reflects the experiences of all victims and patterns of criminality in conflict. For this reason, despite an initial inclination within the OTP to focus Srebrenica cases solely on the mass killings, we ultimately included charges relating to the forcible displacement operations as well. In doing so, we ensured that our Srebrenica cases not only document the fate of Srebrenica’s men and boys, but tell the story of women and girls as well. However, despite this deliberate attempt to paint the picture of events more completely, crimes of sexual violence were still largely missing.

A connected factor that has contributed to omissions of sexual violence from our judgments is the type of investigations that are required and prioritized in certain cases. For instance, OTP cases relating to Sarajevo were built on swathes of highly technical ballistics evidence, relating to sniper positions and bullet trajectories, analyses of shell-impact sites and so on. The investigations into the events at Srebrenica called for detailed forensic investigations into the identification of primary and secondary mass grave sites. In such cases, investigations calling for a particular technical methodology can dominate institutional resources and may be prioritized over other forms of investigation or lines of inquiry.

In this respect, if a lesson can be drawn from the ICTY’s experience, it is perhaps to be aware of our own natural tendency to categorize, group, and prioritize crimes, and to allocate resources accordingly. We must reflect and challenge this tendency during the investigation and prosecution process. Vigilance is required so as to ensure that our collective intuition does not steer us towards certain crimes while neglecting others.

Other ICTY cases have also failed to reflect external reports of sexual violence, for a range of more practical reasons. This is particularly so with respect to our cases relating to Višegrad and Kosovo. Examining the reasons for these failures may provide valuable points for reflection, so that similar risks and obstacles can be navigated in the prosecution of mass atrocities in other international fora such as the ICC.

The Commission of Experts Final Report contained allegations of the repeated rape of women and girls detained in Višegrad, BiH, including Hotel Vilina Vlas.137 One report estimated that 200 women, primarily Muslim, were detained and sexually assaulted at the Hotel.138 The report expressly named Milan Lukić as a perpetrator, stating that he was ‘accused of murder, deliberate destruction of Muslim property, and molestation of young Muslim women at the “Vilina Vlas” and “Bikavac” hotels’.139 Media reports and books also documented extensive reports of sexual violence in (p. 326) Višegrad, which implicated Milan Lukić as a perpetrator.140 Rape victims interviewed by the media even named Lukić as the perpetrator.141

As discussed in greater detail in Chapters 3 and 4,142 in the Lukić and Lukić case, the OTP did not expressly include sexual violence charges in the indictment.143 However, the OTP was ultimately permitted to bring limited evidence of rape at trial for the confined purposes of: rebutting alibi evidence lead by the accused; establishing perpetrator identity (with respect to charged crimes); proving the general elements for war crimes and crimes against humanity; and proving related persecution charges. While, importantly, these sexual violence crimes were recognized and documented in the Lukić and Lukić Trial Judgment, Milan Lukić was not convicted for them.

As discussed in Chapter 3, the OTP has reflected on the reasons for the failure to initially include sexual violence charges. These ranged from factors such as witness reluctance and security concerns, pressure to move cases forward in line with the ICTY’s completion strategy, through to internal OTP considerations such as prioritization of leadership cases, resource limitations, and the OTP’s decision to cease investigating further once the case was identified for transfer to BiH for prosecution.144 Our belated attempts to amend the Lukić and Lukić Indictment to include sexual violence charges were unsuccessful.145

Our cases concerning Kosovo are another area where crimes of sexual violence have less prominence in ICTY judgments than might have been expected. Reports of widespread sexual violence surfaced during the massive forced displacement campaign of Kosovo Albanians in 1999 and received international attention.146 By the end of 1999 this was documented by the OSCE Kosovo Verification Mission (OSCE-KVM)147 and international and regional NGOs.148 Following extensive investigations, (p. 327) the conclusions reached independently by the OSCE-KVM and Human Rights Watch depicted a pattern of sexual violence as a means of ethnic cleansing, reflective of that seen earlier in Croatia and BiH.149 Human Rights Watch reported:

[R]ape and other forms of sexual violence were used in Kosovo in 1999 as weapons of war and instruments of systematic ‘ethnic cleansing.’ Rapes were not rare and isolated acts committed by individual Serbian or Yugoslav forces, but rather were used deliberately as an instrument to terrorize the civilian population, extort money from families, and push people to flee their homes.150

NGOs implored the ICTY to investigate and prosecute the systematic sexual violence used to drive Kosovo Albanians from Kosovo.151

Ultimately, however, a limited amount of evidence concerning sexual violence adduced in ICTY cases have focused on the crimes committed against Kosovo Albanians in 1999.152 As set out in Annex A, the Đorđević and Šainović et al. trial judgments contain limited findings relating to discrete incidents of sexual violence perpetrated against particular Kosovo Albanian victims. In at least two of the incidents, there were suggestions that other Kosovo Albanian women were also subject to the same fate, but further evidence was not presented and the Trial Chambers’ findings were limited to the discrete incidents.

As discussed in Chapter 3, the limited evidence of sexual violence in our Kosovo cases can be attributed to a number of external and internal factors, ranging from victims’ security concerns, witness fatigue, institutional pressures, and the perception of some investigators that they did not have sufficient evidence to prove the ‘pattern’ of sexual violence believed necessary.153 Although crimes of sexual violence in Kosovo during the 1999 mass expulsion campaign were investigated and charged in the case against Slobodan Milošević, the OTP faced pressure to ‘streamline’ its case against the former FRY President, resulting in a number of charges being cut, including incidents of sexual violence.154 The victims of sexual violence who did testify in the Milošević proceedings were cross-examined by Milošević himself, as he was self-represented. This took a substantial toll on the victim-witnesses.155 By the time the next case relating to the 1999 Kosovo campaign, Milutinović et al., began, many victims refused to (p. 328) testify again.156 Given the OTP’s failure to secure convictions for particular charged incidents of sexual violence in the Milutinović et al. case,157 even fewer victims were willing to come back for the final Kosovo case, Đorđević.158

The combination of these several factors could lead us to attribute this unsatisfactory outcome to the routine pressures and considerations that play into all OTP cases, which equally have a bearing on the prosecution of other crimes. While there is truth in that, it nonetheless remains the case that sexual violence has too long suffered from historical silence, combined with unique obstacles to prosecution and misconceptions that affect our approach. For these reasons, passively allowing sexual violence crimes to be subject to the prevailing institutional forces will ensure that crimes of sexual violence continue to be under-represented in proceedings and judgments. Until such time as historical or institutional barriers cease to impede the equal investigation and prosecution of sexual violence crimes, they must be given heightened scrutiny in investigations and special attention during prosecutions.

2.  Omission of certain types of charges

A salient aspect of the Commission of Experts’ findings on sexual violence was the inclusion of reports that women had been detained not only for rape, but specifically for the purposes of forced impregnation. The Final Report cited accounts of prison camp victims who believed their captors had deliberately tried to impregnate them and that pregnant women were imprisoned until it was too late for them to terminate their pregnancy.159

ICTY case law includes some references to the threat of forced pregnancy. Dragoljub Kunarac, who imprisoned women and girls in Foča and kept them as sexual slaves, taunted one of his victims that she would be impregnated with a Serb baby.160 There are accounts from witnesses that women at the Trnopolje camp in Prijedor sought medical attention for the termination of pregnancies after being raped.161 The Brđanin Trial Chamber heard evidence that one perpetrator ‘made no secret that he wanted a Bosnian Muslim to “give birth to a little Serb”’.162

In reviewing the indictments against Karadžić and Mladić in 1996, which included charges of sexual violence as persecution, the Trial Chamber commented on the evidence before it stating that ‘[s]ome camps were specially devoted to rape, with the aim of forcing the birth of Serbian offspring, the women often being interned until it was (p. 329) too late to undergo an abortion’ and that ‘the aim of many rapes was enforced impregnation’. The Chamber noted that ‘[s]everal witnesses also said that the perpetrators of sexual assault, often soldiers, had been given orders to that effect and that the camp commanders and officers had been informed thereof and participated therein’.163

However, forced pregnancy charges have never proceeded to trial at the ICTY, despite it being recognized as a violation of international humanitarian law and human rights law,164 potentially chargeable as a crime against humanity or a war crime.165 The reasons behind the omission of charges for forced impregnation are not clear. It may reflect an absence of sufficient evidence enabling the Prosecution to establish incidents of sexual violence resulting in a pregnancy and the necessary intent to impregnate on behalf of the perpetrator. It may also be attributable, in part, to a view that proving the intent to impregnate would be more difficult for the Prosecution to establish than the intent to rape or even the specific intent required for proving rape as persecution, torture, or genocide.166 As the OTP has seen in other cases,167 charging incidents of sexual violence as specific intent crimes creates an additional evidentiary hurdle. Where appropriate, future prosecutions should give consideration to charging rape and forced pregnancy concurrently, so even if the latter is not established, the conviction for rape is preserved.

As discussed in greater detail in Chapter 7, charges for ‘planning’, ‘ordering’, or ‘instigating’ acts of sexual violence are also largely absent from ICTY case law, with the exception of the conviction of Stevan Todorović.168 This may seem somewhat surprising in light of the observations made by the Commission of Experts, surmizing that sexual violence was so pervasive and its infliction so deliberate that it must have had some level of organization and institutional backing, particularly in prison camps.169 (p. 330) In ICTY case law, orders need not be written. They can also be ‘implicit’.170 Therefore it would not be necessary to surmount the evidentiary hurdle of producing evidence of a written ‘order’ issued down a chain of command. However, an order must still involve a positive instruction, issued by a person in a position of authority.171

The relative paucity of convictions through these modes of liability in relation to sexual violence crimes are not entirely the result of OTP charging decisions, given that indictments are frequently drafted with all modes of liability charged in the alternative. It is thus for the Trial Chamber to convict under the mode of liability it considers most appropriate. In cases where there could be sufficient evidence to prove ordering or instigating (if not through direct evidence, through an inference drawn from circumstantial evidence), it may be that another mode of liability, such as JCE, would better reflect the accused’s responsibility and contribution overall. That said, while preserving all options by charging modes of liability in the alternative, the OTP has generally not placed much emphasis on modes of liability such as ordering, planning, or instigating as applied to crimes of sexual violence.

It may also be that modes of responsibility such as ‘ordering’ do not always neatly fit with the reality of how sexual violence is encouraged and condoned from higher levels during conflict. Should a military commander wish members of a target group to be subjected to sexual violence, this goal could be achieved in the absence of any form of order. As ICTY cases have demonstrated, commanders, particularly those running prison camps, can successfully create and perpetuate an environment of impunity amongst their ranks, fuel a sense of ethnic animus, and keep members of the target group in circumstances where they are vulnerable to all forms of abuse, with the knowledge that sexual violence will inevitably flourish in these circumstances. However, as discussed in Chapter 7, an order need not be formal or directly involve the commission of a crime. It is sufficient to issue an order with knowledge of a substantial likelihood that crimes would result from that order (i.e. ordering with indirect intent).172 Although sexual violence charges have not previously been framed in this manner at the ICTY, this may provide a further avenue for framing responsibility in situations where sexual violence is commonly perpetrated, for example in prison camps administered by a military commander.

E.  A Systematic Policy of Sexual Violence?

As discussed throughout this book, one of the most prominent dialogues surrounding the perpetration of sexual violence in the former Yugoslavia is whether it reflected a deliberate, systematic ‘policy’ of sexual violence, promulgated and endorsed at the highest levels. For instance, the Commission of Experts argued that for purposes of prosecution, an important distinction existed between ‘opportunistic’ crimes and the use of rape and sexual assault as a method of ‘ethnic cleansing’.173 The Commission (p. 331) concluded that the overall pattern of rape and sexual assault in BiH suggested that a ‘systematic rape and sexual assault policy’ existed, requiring some level of organization and group activity, particularly in detention camps.174 It considered that one possible interpretation of the pervasive reports of sexual violence was the existence of an ‘overriding policy advocating the use of rape as a method of “ethnic cleansing”, rather than a policy of omission, tolerating the widespread commission of rape’.175

An important starting point is the ICTY cases that have found that sexual violence formed part of a ‘common criminal purpose’ for the purposes of JCE liability. Under this doctrine, the common criminal plan, or purpose, may either be criminal in and of itself, or may involve the commission of crimes as a means to realize its objective. As discussed in Chapter 7, in the Stakić case, the common criminal purpose consisted of a ‘discriminatory campaign to ethnically cleanse the municipality of Prijedor by deporting and persecuting Bosnian Muslims and Bosnian Croats in order to establish Serbian Control’.176 A violent campaign of crimes, including sexual violence, was used to realize this objective, by terrifying the population into fleeing. Likewise, in the Kvočka et al. case, the perpetration of sexual violence crimes in the Omarksa camp in the Prijedor municipality were found to form part of a ‘system of ill-treatment’ for the purposes of establishing JCE (Category 2) liability. The legal findings in both of these cases demonstrate the role of sexual violence as part of a broader criminal campaign or organized system. Important questions about the role of sexual violence as part of joint criminal enterprises to ethnically cleanse and to destroy a community are still pending in the Karadžić and Mladić cases.

However, notwithstanding these findings, looking back over nearly two decades of written judgments, the notion of ‘systematic’ sexual violence being perpetrated pursuant to a formal ‘policy’, as suggested by the Commission of Experts, has not emerged as consistently through the judgments as might have been expected.

There are a number of possible reasons for the different emphasis between ICTY cases and the findings of the Commission of Experts in terms of the notion of a systematic ‘policy’ of sexual violence. Notably, the Commission of Experts Final Report was based on a fact-finding inquiry, and although comprehensive, it did not seek to establish allegations to the criminal standard of ‘beyond reasonable doubt’. Equally, as discussed in the introduction to this chapter, there are inherent limitations in cases focusing on individual criminal liability for discrete charges, which provide only a slice of the picture of conflict. While it is possible to extrapolate trends from looking at the body of cases as a whole, the parameters of each individual case—particularly in the case of lower-level accused—circumscribe the kind of evidence that was necessary and relevant to prove the charges in that case. Thus, even when the cases are taken as a whole, they may not contain the findings necessary to provide a complete picture.

While many of these factors are simply inherent in the model of individual criminal responsibility, throughout this book we have also discussed areas where the OTP could have done more to charge and contextualize crimes of sexual violence. As discussed in Chapter 6, where we charged sexual violence as persecution, we have struggled to (p. 332) convince some Trial Chambers of how sexual violence fit within a discriminatory campaign. Equally, where other crimes such as murder or wanton destruction have been found to fall within a joint criminal enterprise aimed at forcibly removing the civilian population through violence and fear, sexual violence has not been found to be part of the common criminal plan.177

Beyond simply investigating and charging more incidents of sexual violence, a central challenge for the OTP and other international criminal institutions in the future is situating and contextualizing this violence within the conflict, enabling Trial Chambers to make broader factual findings regarding the role sexual violence played, beyond the discrete acts charged. The OTP has frequently presented the testimony of expert witnesses, including historians, political analysts, and military experts, to provide Trial Chambers with background information to enable them to place crimes in a broader social, historical, and political context. More consideration should also be given to the use of expert evidence in contextualizing sexual violence.178 Even in cases of lower-level perpetrators, such evidence may assist a Trial Chamber to link the perpetration of sexual violence on the ground to a broader campaign, or even to the existence of a high-level ‘policy’. Based on our experience, we consider the use of such evidence may prove to be of considerable utility in future international criminal cases involving sexual violence, such as those brought before the ICC.

That said, as noted in Chapter 6, questions as to whether a ‘policy’ of sexual violence existed or whether sexual violence has been used ‘strategically’ may not ultimately be the most elucidating lines of inquiry. Focusing too heavily on these questions may unduly circumscribe our inquiry and limit our understanding of the role of sexual violence in the conflict. What is clear from the cases is that—using the Bosnian Serb Strategic Goals as an example—non-Serbs within BiH were expelled from their homes or otherwise eradicated through a massive campaign of violence. This campaign manifested itself in several forms, from killings to destruction of cultural monuments. So too, sexual violence can be seen as a part of this campaign, which was orchestrated at the highest levels and implemented right down the chain of command. As noted by some commentators, the widespread ‘practice’ of sexual violence is perhaps more appropriate terminology than ‘policy’.179 Acknowledging this is not to diminish the role or impact of sexual violence in the conflicts. As noted above, even in the absence of a proved ‘policy’, a practice of tolerating, endorsing, and even encouraging sexual violence still has a devastating and widespread impact, which must attract accountability. Ultimately, as prosecutors, more important than the intellectual exercise of categorizing various forms of sexual violence, is the goal of ensuring that our cases accurately reflect the nature and scale of these crimes together with the role and responsibility of the perpetrators, and ensuring that the experience of victims is adequately acknowledged and documented.

(p. 333) F.  Conclusions and Fundamental Insights for the Future

This chapter has discussed the different settings in which sexual violence occurred in the conflicts in the former Yugoslavia, as reflected in ICTY cases, as well as some of the prevailing characteristics of the sexual violence crimes perpetrated. Despite the limitations and omissions discussed herein, our cases provide a multi-faceted and complex view of sexual violence in conflict.

In looking to the future of international criminal justice, what lessons can be drawn from our cases?

The range of situations in which sexual violence was documented—from prison camps to house searches—and the range of victims of these crimes—from young girls to elderly men—forces us to recognize the myriad circumstances in which sexual violence can be perpetrated. It demonstrates the different manifestations, targets, and uses of sexual violence in conflict. To this end, it highlights that, particularly at the investigation stage, we should guard against assumptions that foreclose avenues of investigation into sexual violence in circumstances in which it might not be ‘expected’. Likewise, our innate propensity to categorize and group crimes and reconcile them into a particular theory of the case may inadvertently lead us to de-prioritize or overlook sexual violence crimes if they do not fit into the dominant narrative. We must remain mindful of this tendency and resist the inclination to exclude the investigation and prosecution of serious crimes from our cases where they do not fit within our pre-conceived notions of the crimes committed.

This chapter has also discussed other practical reasons why our cases do not fully reflect the sexual violence committed during the conflicts. A range of explanations have been discussed, from our own investigative and prosecutorial priorities, through to institutional forces and difficulties in securing victim-witness participation. While many of these reasons reflect the realities of prosecuting mass atrocities at the international level, they nonetheless provide a reminder that we must remain vigilant in ensuring crimes of sexual violence are afforded the institutional resources and priority they deserve. Looking to the future of international criminal law, it is inevitable that the ICC will face many of the same institutional pressures and resource limitations that the ICTY has. However, it may be useful for ICC prosecutors to reflect on some of the pitfalls and challenges that we have faced at the ICTY, and how these can be navigated and overcome, in seeking to secure convictions for crimes of sexual violence.

Finally, this chapter has discussed the particular issue of whether reports of a ‘policy’ of sexual violence are borne out in ICTY judgments. We are mindful that this line of inquiry, which is undoubtedly of historical and sociological importance, may nonetheless distract us as prosecutors from the more relevant enquiry: how sexual violence formed part of the broader campaign of violence, and how we can properly contextualize it to reflect that reality through the crimes charged.

While these fundamental insights could be applied to all crimes, the starting point is that we have inherited a legacy of historical silence and under-investigation and prosecution in relation to sexual violence crimes. As set out in Chapter 4, to ensure (p. 334) these crimes receive the equal and proper recognition they deserve, and to address this historical imbalance, we recommend that specific, targeted policies are in place regarding sexual violence crimes, from investigation through to the formulation of charges and presentation of the prosecution case. To this end, we note that the Office of the Prosecutor at the ICC has issued a detailed policy on investigating and prosecuting sexual and gender-based crimes to ensure that particular attention is paid to sexual and gender based crimes at all stages of its work.180 Operationalizing this policy in the day-to-day work of the office will be of paramount importance moving forward.

Alongside the pursuit of individual criminal accountability for crimes, a guiding principle in our work must be to portray a full and accurate picture of the conflict, ensuring that the experience of all victims is adequately reflected through our cases.

Footnotes:

Michelle Jarvis and Najwa Nabti provided substantial input into the concept and structure of this chapter, together with source materials and guidance on lines of inquiry.

See Ch. 2.

See Ch. 3.

See Chs. 4 to 7.

This includes ongoing proceedings against the President of the Bosnian Serb Republic, Radovan Karadžić; Commander of the Main Staff of the Bosnian Serb Army, Ratko Mladić; six senior Bosnian Croat military and political officials in the Prlić et al. proceedings; high ranking members of the Serb DB (State Security), Jovica Stanišić and Franko Simatović; Minister of the Republika Srpska MUP, Mićo Stanišić, together with Chief of the Regional Security Services Centre of Banja Luka, Stojan Župljanin; and Serbian political figure, Vojislav Šešelj.

This notion has been recited in a number of ICTY decisions and judgments. See e.g. Prosecutor v Kupreškić et al., ICTY-95-16-T, Trial Judgment (14 January 2000) (Kupreškić Trial Judgment) para 756; Prosecutor v Stanišić and Simatović, ICTY-03-69-PT, Decision Pursuant to Rule 73 bis (D) (4 February 2008) para 21; Prosecutor v Dragan Nikolić, ICTY-94-2-S, Sentencing Judgment (18 December 2003) (Dragan Nikolić Sentencing Judgment) para 122; Prosecutor v Deronjić, ICTY-02-61-S, Sentencing Judgment (30 March 2004) para 135.

The characteristics focused upon are by no means exhaustive, nor do they seek to formally classify or categorize different ‘forms’ of sexual violence.

As noted in previous chapters, the Final Report contained a detailed narrative of crimes that were reported during the conflict, including an annex specifically dedicated to reported crimes of sexual violence. The Final Report was submitted to the ICTY in 1994 and informed the ICTY’s early investigations. See UNSC ‘Letter Dated 24 May 1994 from the Secretary-General to the President of the Security Council’ (27 May 1994) UN Doc S/1994/674 Annex: Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780 (1992) (Commission of Experts Final Report).

Prosecutor v Brđanin, ICTY-99-36-T, Trial Judgment (1 September 2004) (Brđanin Trial Judgment) para 55; Prosecutor v Tadić, ICTY-94-1-T, Trial Judgment (7 May 1997) (Tadić Trial Judgment) para 68.

10  Tadić Trial Judgment (n 9) para 68; Kupreškić Trial Judgment (n 6) para 40. See also Prosecutor v Kordić and Čerkez, ICTY-95-14/2-T, Trial Judgment (26 February 2001) para 137.

11  Brđanin Trial Judgment (n 9) paras 65–79. See also e.g. Prosecutor v Martić, ICTY-95-11-T, Trial Judgment (12 June 2007) (Martić Trial Judgment) para 442; Prosecutor v Plavšić, ICTY-00-39&40/1-S, Sentencing Judgment (27 February 2003) (Plavšić Sentencing Judgment) para 11; Prosecutor v Stanišić and Župljanin, ICTY-08-91-T, Trial Judgment (27 March 2013) (Stanišić and Župljanin Trial Judgment) vol 2 paras 308–13.

12  See e.g. Prosecutor v Galić, ICTY-98-29-T, Judgment and Opinion (5 December 2003) paras 593–4; Brđanin Trial Judgment (n 9) para 159; Stanišić and Župljanin Trial Judgment (n 11) vol 1 paras 213, 276, 341, 482, 686, 806, 874, 932, 975, 1035, 1112, 1186, 1241, 1282, 1350, 1409, 1492, 1549, 1673.

13  See e.g. Stanišić and Župljanin Trial Judgment (n 11) vol 2 para 311.

14  See e.g. Martić Trial Judgment (n 11) para 443; Brđanin Trial Judgment (n 9) para 159; Tadić Trial Judgment (n 9) para 126; Plavšić Sentencing Judgment (n 11) paras 34–42.

15  See Annex B. Eight additional accused were convicted of sexual crimes in which appeal proceedings are pending.

16  ICTY proceedings have also been brought against ethnic Macedonians for crimes alleged to have been committed in the Former Yugoslav Republic of Macedonia in 2001 (see generally Prosecutor v Boškoski and Tarčulovski, ICTY-04-82-T, Trial Judgment (10 July 2008)) but the proceedings did not contain any allegations of sexual violence.

17  Although such acts of sexual violence may nonetheless constitute crimes under the ICTY Statute and form part of broader patterns of sexual violence in the conflicts.

18  See e.g. Brđanin Trial Judgment (n 9); Prosecutor v Krajišnik, ICTY-00-39-T, Trial Judgment (27 September 2006) (Krajišnik Trial Judgment) paras 289–96; Plavšić Sentencing Judgment (n 11); Stanišić and Župljanin Trial Judgment (n 11) vol 1.

19  See e.g. UNSC ‘Letter Dated 24 May 1994 from the Secretary-General to the President of the Security Council’ Addendum: Annexes to the Final Report of the Commission of Experts (27 May 1994) UN Doc S/1994/674 Established Pursuant to Security Council Resolution 780 (1992) Annexes IX to XII UN Doc S/1994/674/Add.2 (vol V) Annex IX: Rape and Sexual Assault (Commission of Experts Report Annex IX on Rape and Sexual Assault) paras 12–13 (detailing these two common patterns of takeovers, in which crimes of sexual violence occur).

20  Brđanin Trial Judgment (n 9) para 104.

21  Prosecutor v Stakić, ICTY-97-24-T, Trial Judgment (31 July 2003) (Stakić Trial Judgment) para 133.

22  Prosecutor v Prlić et al., ICTY-04-74-T, Trial Judgment (29 May 2013) (Prlić Trial Judgment) vol 3 paras 401–4.

23  Ibid., paras 426–7, 780.

24  See ibid., vol 2 paras 749–57, 763; Prosecutor v Naletilić and Martinović, ICTY-98-34-T, Trial Judgment (31 March 2003) (Naletilić and Martinović Trial Judgment) para 1.

25  See Prlić Trial Judgment (n 22) vol 2 paras 815, 818, 876, 900, 925, 927, 935.

26  The dual denomination of places in Kosovo here reflects their names in Serbian and Albanian languages, as used in the judgments such as Milutinović et al. and Đorđević.

27  Prosecutor v Đorđević, ICTY-05-87/1-T, Trial Judgment (23 February 2011) (Đorđević Trial Judgment) vol 1 para 817.

28  Prosecutor v Milutinović et al., ICTY-05-87-T, Trial Judgment (26 February 2009) (Milutinović Trial Judgment) vol 2 para 875. Evidence relating to this incident was not heard in the Đorđević proceedings.

29  See e.g. Brđanin Trial Judgment (n 9) paras 90, 210, 316, 367, 418–9, 470. Brđanin’s liability for crimes committed in the Autonomous Region of Krajina (ARK) was based, in part, on his responsibility for the issuance of disarmament orders, which were enforced selectively against non-Serbs and formed a vital part of the overall plan of ethnic cleansing. This both rendered non-Serbs more vulnerable to attack and created a pretext for persecutory behaviour and the commission of crimes. The Trial Chamber found, for instance, that ‘in the municipality of Prijedor Bosnian Serb soldiers conducted searches in the houses inhabited by Bosnian Muslims on the pretext of looking for weapons. They would then loot the valuables and food from the houses. Bosnian Serb homes were not searched’ ibid., para 630.

30  See pp 202–9 in Ch. 6 and pp 223–30 in Ch. 7.

31  See pp 208–9 in Ch. 6 and pp 248–9 in Ch. 7, relating to the OTP’s experience in the Milutinović et al. and Đorđević proceedings, in alleging that sexual violence crimes committed during forcible transfer operations were acts of persecution and that they were a foreseeable consequence of the JCE to forcibly expel the Kosovo Albanian population. See further Annex A, pt 3.

32  Prosecutor v Stanišic and Simatović, ICTY-03-69-T, Trial Judgment (30 May 2013) (Stanišic and Simatović Trial Judgment) vol 1 para 557. Evidence to this effect has also been presented in the Hadžić proceedings, which are ongoing.

33  See Prosecutor v Đorđević, ICTY-05-87/1-A, Appeal Judgment (27 January 2014) (Đorđević Appeal Judgment) paras 857–9, 897, 926–7, 929.

34  Stanišić and Simatović Trial Judgment (n 32) vol 1 para 874. However, the Trial Chamber found that the mens rea for forcible transfer had not been satisfied in relation to incidents including the rapes.

35  Commission of Experts Report Annex IX on Rape and Sexual Assault (n 19) 21 (noting that out of about 1,100 reported cases of rape and sexual assault, approximately 600 occurred in detention settings).

36  See pp 37–9, 54–5 in Ch. 3. See however pp 151–2 in Ch. 5—discussing the differences in sexual violence perpetrated against men in prison settings (often in front of others) and against women (often perpetrated less openly) and indicating that the ‘openness’ of sexual violence in prison settings may impact the availability of supporting evidence.

37  See Ch. 3.

38  See pp 330–2.

39  Prosecutor v Kvočka et al., ICTY-98-31/1-T, Trial Judgment (2 November 2001) (Kvočka Trial Judgment) paras 98–108.

40  Brđanin Trial Judgment (n 9) para 512; Stanišić and Župljanin Trial Judgment (n 11) vol 1 paras 587 (relying on adjudicated facts 893, 898), 683. See also Stakić Trial Judgment (n 21) para 240.

41  Prosecutor v Delalić et al., ICTY-96-21-T, Trial Judgment (16 November 1998) (Delalić Trial Judgment) paras 937–42, 958–65.

42  E.g. Tadić Trial Judgment (n 9) para 175 (testimony of a former prisoner from Trnopolje stating ‘The very act of rape … had a terrible effect on them. They could, perhaps, explain it to themselves when somebody steals something from them, or even beatings or even some killings… but [w]hen the rapes started, everybody lost hope, everybody in the camp, men and women. There was such fear, horrible.’).

43  Krajišnik Trial Judgment (n 18) paras 679, 685.

44  Stanišić and Župljanin Trial Judgment (n 11) vol 1 paras 1523–5.

45  Krajišnik Trial Judgment (n 18) para 372; Stanišić and Župljanin Trial Judgment (n 11) vol 1 para 1599.

46  Prosecutor v Blaškić, ICTY-95-14-T, Trial Judgment (3 March 2000) (Blaškić Trial Judgment) para 695.

47  This was one of the ‘categories’ of sexual violence recognized in the Commission of Experts Report Annex IX on Rape and Sexual Assault (n 19) para 5.

48  Blaškić Trial Judgment (n 46) paras 362–7.

49  Prosecutor v Kordić and Čerkez, ICTY-95-14/2-A Appeal Judgment (17 December 2004) (Kordić Appeal Judgment) paras 639–40.

50  Blaškić Trial Judgment (n 46) para 691.

51  Delalić Trial Judgment (n 41) paras 937–42.

52  Prosecutor v Bralo, ICTY-95-17-S, Sentencing Judgment (7 December 2005) (Bralo Sentencing Judgment) paras 3, 5, 15–16; Prosecutor v Furundžija, ICTY-95-17/1-T, Trial Judgment (10 December 1998) (Furundžija Trial Judgment) paras 124–6, 264; Prosecutor v Bralo, ICTY-95-17-PT, Amended Indictment (18 July 2005) (Bralo Indictment) para 30.

53  Stanišic and Simatović Trial Judgment (n 32) vol 1 para 471.

54  Prosecutor v Haradinaj et al., ICTY-04-84-T, Trial Judgment (3 April 2008) para 466.

55  See pp 151–2 in Ch. 5. See e.g. the manner in which sexual violence was perpetrated against women at Omarska camp, as depicted in the Kvočka et al. case: See e.g. Kvočka Trial Judgment (n 39) paras 98–100, 104, 107–8.

56  Brđanin Trial Judgment (n 9) paras 517, 1013; Stanišić and Župljanin Trial Judgment (n 11) vol 1 para 603 (relying on Adjudicated Fact 882).

57  Krajišnik Trial Judgment (n 18) para 304.

58  Prlić Trial Judgment (n 22) vol 3 paras 427, 780.

59  Ibid., vol 2 para 270.

60  Ibid., vol 2 para 982.

61  Delalić Trial Judgment (n 41) paras 1065–6.

62  Krajišnik Trial Judgment (n 18) paras 654–6.

63  Prosecutor v Češić, ICTY-95-10/1-S, Sentencing Judgment (11 March 2004) (Češić Sentencing Judgment) paras 4, 13–14, 35–6.

64  Brđanin Trial Judgment (n 9) para 824; Stanišić and Župljanin Trial Judgment (n 11) vol 1 para 475.

65  Furundžija Trial Judgment (n 52) paras 82, 124.

66  Krajišnik Trial Judgment (n 18) paras 333, 972. See also Stanišić and Župljanin Trial Judgment (n 11) vol 1 para 1084 (Češić saying he hated all Muslims); Češić Sentencing Judgment (n 63) para 7. ‘Balija’ is a derogatory term used against Bosnian Muslims.

67  Prosecutor v Kunarac et al., ICTY-96-23-T & ICTY-96-23/1-T, Trial Judgment (22 February 2001) (Kunarac Trial Judgment) para 583.

68  Ibid., 342, 583, 654; Krajišnik Trial Judgment (n 18) para 640.

69  Prlić Trial Judgment (n 22) vol 2 para 288.

70  Milutinović Trial Judgment (n 28) vol 2 para 632.

71  Ibid., vol 2 para 62.

72  Stanišić and Župljanin Trial Judgment (n 11) vol 1 paras 596–7; Tadić Trial Judgment (n 9) para 155; Kvočka Trial Judgment (n 39) para 98.

73 Stanišić and Župljanin Trial Judgment (n 11) vol 1 para 1088. The Stanišić and Župljanin Trial Chamber concluded that the rapes of female detainees and other mistreatment caused great physical and psychological suffering, constituting torture, other inhumane acts, and cruel treatment, as well as persecution (ibid., vol 1 paras 1106, 1117, 1120–1). In relation to the rapes, Stanišić, Minister of the Republika Srpska MUP, and Župljanin, Chief of the Regional Security Services Centre of Banja Luka, were found responsible for persecution and torture as a violation of the laws and customs of war as natural and foreseeable consequences of the JCE to permanently remove Bosnian Muslims and Bosnian Croats from Serb-claimed territory in BiH through forcible transfer and deportation (ibid., vol 2 paras 313, 525, 528, 776, 779, 955–6). However, the Trial Chamber only entered a conviction based on persecution and acquitted the accused of torture as a crime against humanity, cruel treatment, as a violation of the laws or customs of war, and inhumane acts as a crime against humanity on the basis of these convictions being impermissibly cumulative (ibid., vol 2 paras 955–6). The Prosecution has appealed this finding: Prosecutor v Stanišić and Župljanin, ICTY-08-91-A, Prosecution Appeal Brief (19 August 2013) paras 54–60.

74  Prosecutor v Blagoje Simić et al., ICTY-95-9-T, Trial Judgment (17 October 2003) (Simić et al. Trial Judgment) para 719.

75  Bralo Sentencing Judgment (n 52) para 15; Bralo Indictment (n 52) para 30.

76  Naletilić and Martinović Trial Judgment (n 24) para 464.

77  Prlić Trial Judgment (n 22) vol 2 para 982.

78  Kunarac Trial Judgment (n 67) paras 749, 758.

79  Krajišnik Trial Judgment (n 18) para 463.

80  Tadić Trial Judgment (n 9) para 175; Stakić Trial Judgment (n 21) para 244; Brđanin Trial Judgment (n 9) para 514; Stanišić and Župljanin Trial Judgment (n 11) vol 1 para 682.

81  Tadić Trial Judgment (n 9) para 175.

82  Commission of Experts Report Annex IX on Rape and Sexual Assault (n 19) para 211. See also para 210 (detailing the rape of a man’s youngest child, who did not survive the incident).

83  See Prosecutor v Gotovina et al., ICTY-06-90, Prosecution’s Public Redacted Final Trial Brief (2 August 2010) para 697. See also Prosecutor v Gotovina et al., ICTY-06-90-T, Trial Judgment (15 April 2011) (Gotovina Trial Judgment) vol 1 para 1159.

84  Stakić Trial Judgment (n 21) paras 234–6; Brđanin Trial Judgment (n 9) para 516; Stanišić and Župljanin Trial Judgment (n 11) vol 1 paras 613, 669.

85  See Kunarac Trial Judgment (n 67) paras 587–8, 775–81.

86  Prlić Trial Judgment (n 22) vol 2 para 270. The Prlić et al. proceedings are currently in the appeal phase.

87  See Ch. 3.

88  Prlić Trial Judgment (n 22) vol 2 paras 169–70.

89  Češić Sentencing Judgment (n 63) paras 13–14, 35–6.

90  Stanišić and Župljanin Trial Judgment (n 11) vol 1 paras 1596, 1599.

91  Delalić Trial Judgment (n 41) paras 1039–40.

92  Stanišić and Župljanin Trial Judgment (n 11) vol 1 para 1599.

93  Tadić Trial Judgment (n 9) paras 206, 237, 670, 692, 726, 730.

94  See e.g. Naletilić and Martinović Trial Judgment (n 24) para 450 (the assault of a male prisoner at the Tobacco Institute in Mostar, where the prisoner was beaten in the genitals and face); Brđanin Trial Judgment (n 9) paras 497–8 (the beating of a Muslim prisoner at Kodzila timber company in Bosanski Petrovac, including forceful kicks to the genitals); Prosecutor v Milan Simić, ICTY-95-9/2-S, Sentencing Judgment (17 October 2002) paras 11, 53–4, 63 (the beating of non-Serb male prisoners detained at the primary school in Bosanski Šamac, including kicking their genitals and forcing another prisoner to pull down his pants and threatening to cut his penis off); Stanišić and Župljanin Trial Judgment (n 11) vol 1 para 1235 (a Serb member of the Gacko police stomping on the genitals of a male prisoner). On violence to the genitals as a form of sexual violence, see also Eric Stener Carlson, ‘The Hidden Prevalence of Male Sexual Assault During War: Observations on Blunt Trauma to the Male Genitals’ (2006) 46(1) British J Criminology 16; Sandesh Sivakumaran, ‘Sexual Violence Against Men in Armed Conflict’ (2007) 18(2) EJIL 253, 266.

95  Simić et al. Trial Judgment (n 74) paras 687, 771. See also Stanišić and Simatović Trial Judgment (n 32) vol 1 para 685.

96  Naletilić and Martinović Trial Judgment (n 24) paras 462–4.

97  Stanišić and Župljanin Trial Judgment (n 11) vol 1 para 1524.

98  See p 401 of Annex A and pp 450–3 of Annex B.

99  Tadić Trial Judgment (n 9) paras 206, 237, 670, 692, 726, 730.

100  This includes Željko Mejakić, Momčilo Gruban, Duško Knežević, and Dušan Fuštar, who were tried for their role in the Prijedor camp abuses and Radovan Stanković and Gojko Janković who were tried in relation to the events in Foča. See Prosecutor of BiH v Radovan Stanković, X-KRŽ-05/70; Prosecutor of BiH v Gojko Janković, X-KRŽ-05/161; Prosecutor of BiH v Željko Mejakić, Momčilo Gruban, Dušan Fuštar, and Duško Knežević, X-KRŽ-06/200. See also pp 350–1 in Ch. 10; ICTY Rules of Procedure and Evidence (adopted on 11 February 1994, last amended on 10 July 2015) (ICTY Rules).

101  Krajišnik Trial Judgment (n 18) paras 600, 606. See also Stanišić and Župljanin Trial Judgment (n 11) vol 1 paras 1535 (relying on adjudicated facts 1327, 1335), 1547.

102  Prlić Trial Judgment (n 22) vol 2 paras 270, 272.

103  While the ICTY Statute does not limit the scope of persons that can be prosecuted, the ICTY Rules of Procedure and Evidence place a requirement upon the Bureau (a body comprised of the President, the Vice-President, and the Presiding Judges of the Trial Chambers) to consider whether an indictment submitted by the Prosecution ‘prima facie, concentrates on one or more of the most senior leaders suspected of being most responsible for crimes within the jurisdiction of the Tribunal’. See Statute of the ICTY (Adopted 25 May 1993 by UNSC Res 827 (25 May 1993) UN Doc S/RES/827, amended 7 July 2009 by UNSC Res 1877 (7 July 2009) UN Doc S/RES/1877); ICTY Rules (n 100) r 28. This rule was an amendment in 2004 and came about in response to United Nations Security Council Resolutions 1503 (2003) and 1534 (2004) which called upon the ICTY and the International Criminal Tribunal for Rwanda (ICTR) to concentrate on the most senior leaders in line with the respective completion strategies of both tribunals.

104  Plavšić pleaded guilty on the basis that the crimes incorporated within the charge of persecution, and the preparatory acts thereof, ‘were committed … to achieve the objective of ethnic separation by force or were a natural and foreseeable consequence of it’. See Prosecutor v Krajišnik and Plavšić, ICTY-00-39&40-PT, Factual Basis for Plea of Guilt (30 September 2002). This leaves some ambiguity as to whether particular crimes falling within the persecution charge, such as the crimes of sexual violence, were JCE (Category 1) or JCE (Category 3) crimes.

105  This was the common criminal purpose of the JCE that formed the basis for Plavšić’s responsibility: see Prosecutor v Plavšić, ICTY-00-39&40-PT, Amended Consolidated Indictment (7 March 2002) para 4.

106  Prosecutor v Stakić, ICTY-97-24-A, Appeal Judgment (22 March 2006) para 73 (Stakić Appeal Judgment). The Trial Chamber had convicted Stakić for committing as a co-perpetrator under a form of co-perpetration based on joint control over the criminal conduct. Stakić Trial Judgment (n 21) paras 440, 826. However, the Appeals Chamber overturned this mode of liability, and substituted the mode of responsibility of JCE. Stakić Appeal Judgment (n 106) paras 62, 84–5.

107  See e.g. Stakić Trial Judgment (n 21) paras 475, 477, 818. See pp 224–5 in Ch. 7.

108  Ibid., paras 377–401.

109  Ibid., paras 234–6, 240–1, 244, 791–806, 826.

110  See Đorđević Appeal Judgment (n 33) para 929; Milutinović Trial Judgment (n 28) vol 3 paras 785, 788; Prosecutor v Šainović et al., ICTY-05-87-A, Appeal Judgment (23 January 2013) (Šainović Appeal Judgment) paras 1582, 1592, 1603. On appeal, the Milutinović et al. case was known as Šainović et al. For further discussion of these convictions and the issues arising at the trial and appeal phases in these cases, see pp 423–6 in Annex A. See also pp 248–9 in Ch. 7.

111  Prlić Trial Judgment (n 22) vol 4 paras 284, 437, 830, 1021. See further pp 226–7 in Ch. 7 and pp 416–20 in Annex A.

112  See Prosecutor v Karadžić, ICTY-95-5/18-PT, Third Amended Indictment (27 February 2009) paras 6, 40(b)–(c), 53–4, 60(c); Prosecutor v Mladić, ICTY-09-92-PT, Fourth Amended Indictment (16 December 2011) paras 5, 39(b)–(c), 52–3, 59(c).

113  Prosecutor v Mladić, ICTY-09-92, Rule 98bis Decision (15 April 2014) transcript p 20936; Prosecutor v Mladić, ICTY-09-92, Exhibit P359 p 13.

114  Brđanin Trial Judgment (n 9) paras 1055–7.

115  The ICTY’s cases have covered crimes committed from the outbreak of conflict in BiH in 1991 through to the conflict in the former Yugoslav Republic of Macedonia in 2001.

116  This is also partly the consequence of the incomplete proceedings against high-level accused Slobodan Milošević, President of Serbia and President of the Federal Republic of Yugoslavia, who was charged for his alleged role in a JCE that encompassed the commission of crimes in Kosovo, Croatia, and BiH. He was first indicted in 1999 and arrested in 2001. His trial commenced in 2002 but the proceedings were terminated upon his death in 2006.

117  The Prosecution still bears the onus of proving the elements of charged crimes beyond reasonable doubt in every case, but it can tender evidence that has been presented in previous cases.

118  Adjudicated facts do not alleviate the Prosecution of its obligation to prove the elements of the crimes charged. They operate as rebuttable presumptions. Judicial notice should not be taken of adjudicated facts relating to the acts, conduct, and mental state of the accused. See Prosecutor v Karemera et al., ICTR-98-44-AR73(C), Decision on Prosecutor’s Interlocutory Appeal of Decision on Judicial Notice (16 June 2006) paras 37, 40–53; Prosecutor v Popović et al., ICTY-05-88-A, Appeal Judgment (30 January 2015) para 620.

119  For further discussion, see pp 129–30 in Ch. 5 (noting, however, that adjudicated facts have been of mixed utility for the OTP, as Trial Chambers have adopted different approaches to the probative value of adjudicated facts and have not always relied on adjudicated facts in their findings). Adjudicated facts have been accepted by Trial Chambers particularly in cases of higher-level accused, where the Defence strategy tends to focus more on disputing the accused’s responsibility and ‘linkage’ to the campaign behind the crimes, rather than contesting the commission of crimes as such. For instance, Mićo Stanišić, member of the RS Ministry of Interior and Government, together with Stojan Župljanin, head of the Banja Luka Security Services Centre, were tried for contributing to a JCE, alleged to encompass the abuses perpetrated against prisoners in the camps in Prijedor. By the time the case proceeded to trial, substantial evidence relating to the Prijedor camps had been adduced in other cases. As a result, the Stanišić and Župljanin Trial Chamber was able to draw upon adjudicated facts from previous cases covering the same crime base. This included the Kvočka et al. and Tadić cases, concerning accused persons directly involved in running the camps, and the Brđanin proceedings, which had previously considered the responsibility for abuses perpetrated in the camps as it applied to a regional political leader. Several of the adjudicated facts contained references to the commission of crimes against camp prisoners, including sexual violence. See Prosecutor v Stanišić and Župljanin, ICTY-08-91-T, Decision Granting in Part Prosecution’s Motion for Judicial Notice of Adjudicated Facts Pursuant to Rule 94(B) (1 April 2010).

120  Krajišnik Trial Judgment (n 18) para 965. Veselin Vlahović, aka ‘Batko’, was ultimately tried in the War Crimes Chamber of the BiH State Court in relation to his role in persecuting the civilian non-Serb population from the Grbavica, Vraca, and Kovačići neighborhoods in the Novo Sarajevo Municipality. He was convicted and sentenced at first instance to 45 years’ imprisonment, which was reduced to 42 years on appeal. See Prosecutor v Veselin Vlahović, S1 1 K 004659 11 KrI, First Instance Verdict (29 March 2013); Prosecutor v Veselin Vlahović, S1 1 K 004659 11 KrI, Second Instance Verdict (5 February 2015).

121  Prlić Trial Judgment (n 22) vol 3 paras 326, 401–4.

122  See in particular pp 24–6 in Ch. 2. See also Commission of Experts Final Report (n 8) para 1. The Commission of Experts was charged with investigating and analysing evidence in order to provide its views on possible grave breaches of the Geneva Conventions and other violations of international humanitarian law committed in the territory of the former Yugoslavia. The Commission’s Annex IX, dedicated to findings on sexual violence, is divided into findings on BiH and Croatia. Because of the timing of the Final Report, it does not contain accounts of the events in Srebrenica in 1995, nor subsequent crimes, including those associated with the campaign in Kosovo in 1999.

123  This includes the Galić, Dragomir Milošević, and Perišić cases as well as the ongoing Karadžić and Mladić proceedings. See however fn 119 in Annex A (regarding the report of rapes in Novo Sarajevo taken into account in the Krajišnik proceedings to establish Krajišnik’s knowledge of crimes).

124  See e.g. Albina Sorguc, ‘Srebrenica Anniversary: The Rape Victims’ testimonies’ (Balkan Insight, 11 July 2014) <http://www.balkaninsight.com/en/article/srebrenica-anniversary-the-rape-victims-testimonies> accessed 23 August 2015 (where one rape victim states she provided statements to police and investigators several times, but was never called to court to testify); Nidžara Ahmetašević, ‘Silence and Shame Shield Srebrenica Rapists from Justice’ (Balkan Insight, 8 July 2010) <http://www.balkaninsight.com/en/article/silence-and-shame-shield-srebrenica-rapists-from-justice> accessed 23 August 2015. This article refers to a Human Rights Watch report which detailed crimes of sexual violence in Srebrenica. See Human Rights Watch, Women’s Rights Division, ‘The Fall of Srebrenica and the Failure of UN Peacekeeping/Bosnia and Herzegovina’ (1 October 1995) 34 (‘Women were raped and sexually abused during the fall of Srebrenica, although the extent of such abuse remains unclear.’).

125  See Prosecutor v Krstić, ICTY-98-33-T, Trial Judgment (2 August 2001) paras 45–6, 150, 513, 518, 537, 616–18, 653, 727. The Trial Chamber relied upon the evidence of a UN peacekeeper (Dutch Battalion) and of refugees who witnessed one woman being raped, together with circumstantial evidence that other women were being dragged away, or heard screaming. Other ICTY cases concerning the events at Potočari and Srebrenica include Tolimir, Blagojević and Jokić, and the Popović et al. case. The ongoing proceedings against Radovan Karadžić and Ratko Mladić also contain charges relating to Srebrenica, although crimes of sexual violence are not specifically charged in relation to the crisis at Potočari.

126  Information provided to the OTP by the Organization for Security and Co-Operation in Europe (OSCE) Mission to Croatia in 2012 detailed six cases (including multi-accused cases) before the county courts of Osijek and Vukovar that included allegations or convictions for sexual violence. This includes RH v Dušan and Rade Ivković and RH v Michael Husnik and Kasim Hekić, both heard in the Vukovar County Court, which resulted in convictions for rape by members of the JNA. The documentation received was incomplete.

127  Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia) (Judgment) 2015 (Croatia v Serbia ICJ Judgment) <http://www.icj-cij.org/docket/index.php?p1=3&k=73&case=118&code=cry&p3=4> accessed 8 September 2015.

128  Ibid., paras 305, 311. This was in the context of its discussion of whether serious bodily or mental harm had been inflicted for the purposes of genocide. The Court again considered the findings of rape in the context of its discussion on ‘deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or part’, recalling that acts of rape were committed in a number of localities in Eastern Slavonia and that they caused serious bodily and mental harm to members of the protected group (ibid., para 363). However, the Court went on to find that ‘it has not been shown that these occurrences were on such a scale as to have amounted also to inflicting conditions of life on the group that were capable of bringing about its physical destruction in whole or in part.’ Ibid., para 364. The ICJ ultimately rejected Croatia’s claim, and Serbia’s counter claim, finding that neither had substantiated its allegation that genocide was committed. Ibid., paras 441, 515, 524.

129  The case against Slobodan Milošević, President of Serbia and President of the Federal Republic of Yugoslavia, included charges relating to the crimes committed in the Vukovar hospital/Ovčara farm incident, together with a much broader range of crimes committed in Croatia, as well as Bosnia, and Kosovo. The proceedings were stayed upon the death of the accused, prior to a final judgment being issued.

130  Prosecutor v Mrkšić, Radić and Šljivančanin, ICTY-95-13/1-T, Trial Judgment (27 September 2007) (Mrkšić Trial Judgment).

131  Ibid., paras 234–46.

132  Ibid., para 252.

133  Prosecutor v Mrkšić, Radić and Šljivančanin, ICTY-95-13/1-PT, Third Consolidated Amended Indictment (15 November 2004) para 41(b); Mrkšić Trial Judgment (n 130) para 1.

134  Ibid., para 529. The Trial Chamber otherwise dismissed the charges of persecution, torture, and inhumane acts on the basis that the Prosecution had failed to establish that one of the chapeau requirements (civilian status of victims) for crimes against humanity was met (ibid., paras 480–2, 711). The events at Vukovar hospital and the Ovčara farm are also charged in the proceedings against Goran Hadžić, presently ongoing, but sexual violence has not been specifically charged in relation to this event. The Hadžić case covers a broader crime base than Mrkšić et al., including crimes committed surrounding the fall of Vukovar, where some evidence of sexual violence has been tendered into evidence. The Hadžić Indictment charges sexual assault in detention facilities as one of several alleged underlying acts of persecution. Prosecutor v Hadžić, ICTY-04-75-PT, Second Amended Indictment (22 March 2012) paras 21(d), 40–2.

135  Prosecutor v Šešelj, ICTY-03-67, Third Amended Indictment (7 December 2007) paras 17(f), 30. This was charged on the basis of his alleged participation in a JCE.

136  Prosecutor v Šešelj, ICTY-03-67-T, Prosecution’s Closing Brief (5 February 2012) Part 1 para 151. See also para 139.

137  Commission of Experts Report Annex IX on Rape and Sexual Assault (n 19) paras 245–7.

138  Ibid., para 248. See also Prosecutor v Lukić and Lukić, ICTY-98-32/1-PT, Prosecution Motion Seeking Leave to Amend the Second Amended Indictment (Public with Confidential Annexes) (16 June 2008) para 64 (Lukić and Lukić Second Amended Indictment Motion).

139  UNSC ‘Letter Dated 24 May 1994 from the Secretary-General to the President of the Security Council’ Addendum: Annexes to the Final Report of the Commission of Experts (27 May 1994) UN Doc S/1994/674 Established Pursuant to Security Council Resolution 780 (1992) Annex III.A on Special Forces’ (27 May 1994) UN Doc S/1994/674/Annex III.A (vol I) para 246 (relevant excerpts comprise Exhibit P49 in the Vasiljević case). This report, and others, were issued four years before the first indictment was confirmed against Milan and Sredoje Lukić in 1998, and more than ten years before the most recent amendment in 2006.

140  Lukić and Lukić Second Amended Indictment Motion (n 138) paras 60 fn 52, 62–4.

141  Peter Maass, ‘The Rapes in Bosnia: A Muslim Schoolgirl’s Account’ The Washington Post (Washington, 27 December 1992).

142  See pp 51–3 in Ch. 3 and p 77 in Ch. 4.

143  Prosecutor v Lukić and Lukić, ICTY-98-32-1/T, Trial Judgment (20 July 2009) para 36.

144  As discussed at pp 51–3 in Ch. 3, the Prosecution sought for the case to be transferred, but the Appeals Chamber determined that the case should proceed at the ICTY: See Prosecutor v Lukić and Lukić, ICTY-98-32/1-AR11bis.1, Decision on Milan Lukić’s Appeal Regarding Referral (11 July 2007) paras 22, 25–6.

145  See pp 52–3 in Ch. 3.

146  E.g. Nicholas Watt, Ian Traynor, and Maggie O’Kane, ‘Serbs Have Rape Camp, Says Cook’ The Guardian (London, 14 April 1999); Carlotta Gall, ‘Crisis in the Balkans: The Atrocities: Refugees Crossing Kosovo Border Tell of Rapes and Killings’ New York Times (New York, 20 April 1999); Julian Borger, ‘Women Say Village Became Rape Camp’ The Gaurdian (London, 28 April 1999); David Rohde, ‘Crisis in the Balkans: Crimes; An Albanian Tells How Serbs Chose Her, “the Most Beautiful”, for Rape’ New York Times (New York, 1 May 1999); Elisabeth Bumiller, ‘Crisis in the Balkans: Crimes: Deny Rape or Be Hated: Kosovo Victims’ Choice’ New York Times (New York, 22 June 1999).

147  See OSCE ‘Kosovo/Kosova: As Seen, As Told: An analysis of the human rights findings of the OSCE Kosovo Verification Mission October 1998 to June 1999’ (1999) (OSCE-KVM First Report).

148  E.g. Human Rights Watch, Women’s Rights Division, ‘Kosovo: Rape as a Weapon of “Ethnic Cleansing”’ (1 March 2000) (HRW Women’s Rights Division Report) 2–3 <https://www.hrw.org/report/2000/03/01/kosovo-rape-weapon-ethnic-cleansing> accessed 8 September 2015 (discussing rapes reported by NGOs based in Kosovo, Albania, and Serbia and international NGOs Médécins Sans Frontières, Physicians for Human Rights, and Amnesty International); Physicians for Human Rights, ‘War Crimes in Kosovo: A Population-Based Assessment of Human Rights Violations Against Kosovar Albanians’ (August 1999) 27, 43–4, 52, 81.

149  ‘Refugees: Rape used as brutal Weapon’, Sinocast (27 May 1999); OSCE-KVM First Report (n 147) 91–107; HRW Women’s Rights Division Report (n 148). See also OSCE, ‘Human Rights in Kosovo: As Seen, As Told’ vol II, 14 June to 31 October (5 November 1999) pt 3 (documenting many allegations of rape, among other crimes); Human Rights Watch, ‘Under Orders: War Crimes in Kosovo’ (26 October 2001) 130–33 <https://www.hrw.org/report/2001/10/26/under-orders-war-crimes-kosovo> accessed 8 September 2015.

150  HRW Women’s Rights Division Report (n 148) pt 1 Summary. See pt 3 (noting that women in Kosovo knew that rape had been used as a tool of ethnic cleansing in Bosnia, and that many of the same paramilitary groups known for using rape as a weapon of war in Bosnia were also active in Kosovo).

151  Ibid.

152  The first case was that of former FRY President, Slobodan Milošević, which included charges relating to the forcible removal campaign directed against Kosovo Albanians in 1999. The proceedings were stayed upon the death of the accused, prior to a final judgment being issued.

153  See p 54 in Ch. 3.

154  PSVWG interviews, on file with authors.

155  Ibid.

156  Ibid.

157  In particular, the Trial Chamber found that incidents of sexual assault in Priština/Prishtinë had occurred, but they were not committed with discriminatory intent, so did not constitute the crime of persecution: Milutinović Trial Judgment (n 28) vol 2 paras 874–1, 1245. The Prosecution was, however, successful in its appeal against these acquittals in relation to three incidents of sexual assault as persecution: Šainović Appeal Judgment (n 110) paras 584, 586, 591, 593, 597, 599.

158  PSVWG interviews, on file with authors.

159  Commission of Experts Report Annex IX on Rape and Sexual Assault (n 19) para 15.

160  Kunarac Trial Judgment (n 67) paras 342, 583.

161  Stanišić and Župljanin Trial Judgment (n 11) vol 1 para 629, relying on adjudicated fact 902, taken from the Brđanin Trial Judgment (n 9).

162  Brđanin Trial Judgment (n 9) para 1011.

163  Prosecutor v Karadžić and Mladić, ICTY-95-5-R61, ICTY-95-18-R61, Oral Ruling on Review of the Indictments pursuant to Rule 61 of the Rules of Procedure and Evidence (11 July 1996) transcript pp 959–60.

164  See e.g. World Conference on Human Rights ‘Vienna Declaration and Programme of Action’ (12 July 1993) UN Doc. A/CONF.157/23; Fourth World ‘Report of the Fourth World Conference on Women’ (17 October 1995) UN Doc A/CONF 177/20; UNGA Committee on Human Rights Res 1998/52 ‘The Elimination of Violence Against Women’ (17 April 1998) 52nd Session Supp No 3, E/CN 4/1998/52, at 171.

165  Forced pregnancy is specified as a crime at ICC. See Statute of the International Criminal Court (1998) 2187 UNTS 90 (Rome Statute) arts 7(1)(g) (crimes against humanity), 8(2)(b)(xxii) (war crimes in international armed conflict), 8(2)(e)(vi) (war crimes in non-international armed conflict). See also Statute of the Special Court for Sierra Leone (adopted 16 January 2002) art 2 (crimes against humanity).

166  However, this would not necessarily be the case. The examples referred to above of verbal utterances conveying a desire to impregnate, or the issuance of orders to impregnate, would arguably provide strong evidence of intent.

167  See pp 206–9 in Ch. 6.

168  Todorović pleaded guilty to one charge of persecutions, encapsulating a range of conduct, including ordering a man who had been arrested and beaten to bite another man’s penis then to perform fellatio on each other. Prosecutor v Todorović, ICTY-95-0/1-S, Sentencing Judgment (31 July 2001) paras 37–40. The publicly available documents relating to his plea and sentence do not specify which particular mode of liability he was convicted under, although the judgment refers to him ‘ordering’ the crime in the factual sense of the word. There are also some instances of accused persons being convicted for aiding and abetting acts of sexual violence through their presence and encouragement and/or facilitation. See e.g. Kunarac Trial Judgment (n 67) paras 735, 739, 744; Dragan Nikolić Sentencing Judgment (n 6) paras 66–8, 87–90, 117, 119, 194.

169  Commission of Experts Report Annex IX on Rape and Sexual Assault (n 19) para 21.

170  Blaškić Trial Judgment (n 46) para 281.

171  Prosecutor v Dragomir Milošević, ICTY-98-29/1-A, Appeal Judgment (12 November 2009) para 267.

172  See Kordić Appeal Judgment (n 49) paras 30–1. See also Prosecutor v Blaškić, ICTY 95-14-A, Appeal Judgment (29 July 2004) para 471. See also pp 233–4 in Ch. 7.

173  Commission of Experts Report Annex IX on Rape and Sexual Assault (n 19) para 10.

174  Ibid., para 21.

175  Ibid., para 237.

176  Stakić Appeal Judgment (n 106) para 73.

177  See pp 208–9 in Ch. 6 and pp 226–7 in Ch. 7.

178  See pp 152–5 in Ch. 5.

179  Elisabeth Jean Wood, ‘Conflict-Related Sexual Violence and the Policy Implications of Recent Research’ (2015) 894 IRRC 1, 14–18.

180  See Office of the Prosecutor, ‘Policy Paper on Sexual and Gender-Based Crimes’ (June 2014) para 4.