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Oxford Law Citator
Contents
Expand All
Collapse All
Preliminary Material
Dedication
Foreword by Phumzile Mlambo-Ngcuka
Foreword by Zeid Ra’ad Al Hussein
Preface
Acknowledgements
Contents
Table of Cases
International Courts
International Court of Justice
International Criminal Court
Ad hoc Tribunals
International Criminal Tribunal for the former Yugoslavia (ICTY)
International Criminal Tribunal for Rwanda (ICTR)
Mechanism for International Criminal Tribunals (MICT)
Special/Hybrid Tribunals
Special Court of Sierra Leone
Extraordinary Chambers in the Courts of Cambodia
Special Tribunal for Lebanon (STL)
Regional Courts
European Court of Human Rights
Inter-American Commission on Human Rights
Inter-American Court of Human Rights (IACtHR)
ECOWAS Community Court
National Cases
Argentina
Australia
Bosnia and Herzegovina
Canada
Colombia
Croatia
Table of Legislation
International Instruments
Treaties, Conventions and Statutes
UN Security Council Resolutions
UN Human Rights Committee
Secondary Legislation
EU Instruments
Treaties and Conventions
Directives
Other Legislation
National Legislation
Bosnia and Herzegovina, Federation of (see also Republika Srpska)
Cambodia
Colombia
Croatia
Kosovo
Republika Srpska (Bosnian Serb Republic)
Serbia
Yugoslavia, Federal Republic of
Bilateral Agreements
List of Abbreviations
List of Contributors
Note to the Reader
Main Text
1 Overview: The Challenge of Accountability for Conflict-related Sexual Violence Crimes
A Introduction: The Importance of Reflection
B Seeing the Prosecution of Conflict-related Sexual Violence as Core Prosecution Work
C Having Courage to Pursue ‘Risky’ Cases Involving Gender Issues
D Situating Sexual Violence in the Gender Framework
1 Understanding the role of gender regarding conflict-related sexual violence
2 Using our experience with sexual violence crimes to inform a broader approach to gender issues in international criminal law
3 The importance of a top down and bottom up commitment to gender issues in a prosecution office
E A Note about Terminology
F The Structure of this Book
2 International Concern Regarding Conflict-related Sexual Violence in the Lead-up to the ICTY’s Establishment
A Introduction
B International Concern Develops over Sexual Violence in the Former Yugoslavia
C The Commission of Experts’ Work in Documenting Sexual Violence Prior to the ICTY’s Establishment
D The Influence of Concern over Sexual Violence in the Creation of the ICTY
1 Security Council concern over the issue of sexual violence
2 The influence of international concern over sexual violence in developing the ICTY’s legal framework
(a) ICTY Statute
(i) Article 5(g): Rape as a crime against humanity
(ii) Article 16: Employment of qualified women
(iii) Article 22: Protection of victims and witnesses
(b) ICTY Rules of Procedure and Evidence
(c) Continuation of provisions concerning sexual violence in the framework of the ICTY’s successor body
E Conclusions
3 Challenges to Successful Outcomes in Sexual Violence Cases
A Introduction
B Misconceptions about Sexual Violence that Can Impede Accountability
1 ‘Rape and similar acts are matters of honour rather than violent crimes’
2 ‘Conflict-related sexual violence is not as serious as other crimes’
3 ‘Sexual violence is necessarily a “personally motivated” and/or “opportunistic” crime’
4 ‘Conflict-related sexual violence can only be prosecuted if it is systematic/widespread or committed pursuant to orders’
5 OTP documentation confirming the challenge presented by misconceptions of sexual violence
6 Misconceptions concerning sexual violence against males
C Other Barriers to Successful Sexual Violence Prosecutions
D The Impact of Prosecutorial Discretion throughout the Process
1 The nature of prosecutorial discretion in international criminal law cases
(a) Overwhelming volume of criminality
(b) Competing priorities in the ICTY Office of the Prosecutor and implications for the approach to sexual violence cases
(i) Time pressure to issue an indictment and secure the ICTY’s continued existence
(ii) Moving investigations to more senior officials
(iii) The ICTY completion strategy
2 Identifying pressure points for sexual violence charges throughout the investigation and prosecution process
(a) The investigation phase: Risk of failing to uncover evidence of sexual violence
(b) The indictment phase: Risk of failing to include or failing to properly characterize sexual violence charges
(i) Inclusion of sexual violence charges
(ii) Characterizing sexual violence
(c) The pre-trial phase
(i) Pressure to reduce the size of the case: Risk of cutting sexual violence crimes
(ii) Guilty plea negotiations: The risk of bargaining away sexual violence charges
(d) The trial phase
(i) Risk of not adducing sufficient evidence of sexual violence
(ii) Reliance on written evidence: Risk of obscuring sexual violence and disempowering victims
(e) Sentencing
(f) The appeal phase
E Conclusions and Fundamental Insights for the Future
4 Policies and Institutional Strategies for Successful Sexual Violence Prosecutions
A Introduction
B Using Gender Focal Points and other Dedicated Mechanisms for Focusing Attention on Sexual Violence Crimes
1 Appointing a legal advisor for gender issues
2 Forming a dedicated Sexual Assault Investigation Team
3 Relying on focal points and other staff members committed to improving the OTP’s record on sexual violence crimes
C Developing a Comprehensive Written Policy for Sexual Violence Crimes
D Addressing Gender Bias within the OTP
E Developing an Effective Investigation Strategy for Sexual Violence Crimes
1 Implications of the OTP’s pyramid investigation strategy for sexual violence crimes
2 Creating gender-integrated investigation teams
(a) Recruiting female investigators
(b) Training on conflict-related sexual violence investigations
3 Thematic investigations as a strategy for sexual violence cases
4 Strategies for locating witnesses and evidence of sexual violence crimes
(a) Pursuing evidentiary leads from other fact-finding bodies
(b) Using analysts in sexual violence investigations
F Developing Effective Legal Strategies for Prosecuting Sexual Violence Crimes
1 Conceptualizing rape and similar crimes as violent crimes
2 Conceptualizing sexual violence as a serious crime
3 Seeing links between sexual violence and a broader campaign of violent crimes
4 Promoting progressive approaches to the legal elements of rape
5 Recognizing that sexual violence also affects men and boys
6 Training on legal strategies for prosecuting sexual violence crimes
G Ensuring Effective Dissemination and Implementation of OTP Policies and Strategies on Sexual Violence Crimes
H Identifying Gaps in the OTP’s Policies and Strategies on Sexual Violence Crimes
1 Situating sexual violence among a broader approach to gender issues in international criminal law
2 Ensuring that stereotypes about sexual violence do not limit evidence gathering strategies
3 Developing policies to circumvent pressure points for sexual violence charges
4 Training for interpreters, investigators, and prosecutors on interviewing sexual violence victims
5 Psychological support for staff working on sexual violence investigations and prosecutions (management of secondary trauma)
I Maintaining Focus on Sexual Violence Crimes over Time
J The Impact of External Scrutiny of the OTP’s Work on Sexual Violence Crimes
K Conclusions and Fundamental Insights for the Future
5 Proving Crimes of Sexual Violence
A Introduction
B Victim Evidence
1 Testifying about crimes of sexual violence
(a) Preparing sexual violence victims for court
(i) Proofing sessions
(ii) Working with the Victim and Witness Section (VWS)
(iii) The importance of maintaining regular contact with victims
(b) Questioning victims in court
(i) Level of detail required to establish charges of sexual violence
(ii) Impact of victims’ testimonies on sentencing and early release
(iii) Eliciting all relevant evidence
(iv) Adopting strategies to minimize the risk of re-traumatization for victims
a Asking leading questions about incidents of sexual violence
b Seeking defence stipulations to portions of the evidence
c Tendering evidence in written form
2 Challenges to victim evidence
(a) The importance of a specialized procedural framework
(b) Evidentiary challenges to victim evidence
(i) Proving non-consent
(ii) Corroboration
(c) Credibility challenges
(i) Defence strategies
(ii) Inconsistencies in victim evidence
(iii) The impact of trauma on credibility
(iv) Prior sexual conduct of a victim is inadmissible
(v) Perceived inducements provided to sexual violence victims
3 Role of the judges
4 Post-testimony follow-up and post-trial phase
C Other Forms of Evidence
1 Non-victim witnesses
2 Expert evidence
3 Documentary evidence
4 Forensic evidence
D Protective Measures
1 Trial-related protective measures
(a) Tailoring protective measures to meet the needs of victims and witnesses
(b) Types of measures available
(c) Disclosure of the identity and statements of sexual violence witnesses
2 Balancing a sexual violence victim’s right to privacy with disclosure obligations concerning personal victim information
3 Protecting the rights of sexual violence victims in the context of cross-case access requests
4 Enforcing protective measures for sexual violence victims
E Conclusions and Fundamental Insights for the Future
6 Contextualizing Sexual Violence: Selection of Crimes
A Introduction
B Connecting Sexual Violence to the Context through the Selection of Crimes Charged
C Big Picture Contextualizing: The Contextual Elements of War Crimes and Crimes against Humanity
1 War crimes: Connecting sexual violence to the armed conflict
(a) The nature of the required connection
(b) Evidentiary strategies for connecting sexual violence to the armed conflict
2 Crimes against humanity: Connecting sexual violence to a widespread or systematic attack directed against a civilian population
(a) The nature of the required connection
(b) Evidentiary strategies for connecting sexual violence to a widespread or systematic attack directed against a civilian population
D Contextualizing Sexual Violence to Fully and Accurately Reflect its Characteristics: Torture and Enslavement
1 Connecting sexual violence to the context as torture
(a) A preliminary point: rape and similar acts as violent, serious crimes in charging torture
(b) The nature of the required connection
(c) Evidentiary strategies for connecting sexual violence to a prohibited purpose
(i) Sexual violence with interrogation
(ii) Sexual violence in prison settings
(iii) Prohibited purposes found outside of imprisonment
2 Connecting sexual violence to the context as enslavement
(a) The nature of the required connection
(b) Evidentiary strategies for connecting sexual violence to the exercise of powers of the right of ownership
E Contextualizing Sexual Violence to Connect It to a Broader Campaign of Crimes with a Strategic Purpose: Persecution and Genocide
1 A preliminary point: sexual violence as violent, serious conduct in charging persecution and genocide
2 Connecting sexual violence to the context as persecution
(a) The nature of the required connections
(b) Evidentiary strategies for connecting sexual violence to the elements of persecution
(i) Connecting sexual violence to a campaign of fundamental rights violations
(ii) Connecting sexual violence to the discriminatory intent requirement
3 Connecting sexual violence to the context as genocide
(a) The nature of the required connections
(b) Evidentiary strategies for connecting sexual violence to the elements of genocide
(i) Connecting sexual violence to a campaign of destructive acts
(ii) Connecting sexual violence to genocidal intent
F Conclusions and Fundamental Insights for the Future
7 Contextualizing Sexual Violence and Linking it to Senior Officials: Modes of Liability
A Introduction
B Prosecuting Sexual Violence through JCE
1 The general contours of JCE as a mode of liability
2 Charging sexual violence as part of the common criminal purpose: JCE (Categories 1 and 2)
(a) Proving that sexual violence formed part of the common purpose from the beginning
(b) Proving that sexual violence became part of the common criminal purpose over time: The evolving common purpose
(c) Proving that sexual violence was a foreseeable consequence of the common criminal purpose: JCE (Category 3)
3 Linking crimes committed by non-JCE members to the accused
C Prosecuting Sexual Violence through Planning, Ordering, and Instigating
1 Prosecuting sexual violence using planning as a mode of liability
2 Prosecuting sexual violence using ordering as a mode of liability
3 Prosecuting sexual violence using instigating as a mode of liability
D Prosecuting Sexual Violence through Aiding and Abetting
1 Practical assistance, encouragement, or moral support
2 Substantial effect
3 Specific direction is not an element of aiding and abetting
4 Knowledge
E Omission Liability for Sexual Violence
1 Omission liability in general
2 Superior responsibility
(a) Effective control over subordinates
(b) Knowledge or reason to know
F Proving the Foreseeability of Sexual Violence
1 Foreseeability as a cross-cutting theme in modes of liability
2 Developing a conceptual framework for foreseeability questions
3 Developing a list of indicators for proving the foreseeability of sexual violence crimes
4 Positive action to put senior officials on notice of sexual violence crimes
G The Importance of Cumulative and Alternative Charging and of Advocating for Findings on Alternative Modes of Liability in Sexual Violence Cases
H Conclusions and Fundamental Insights for the Future
8 Sentencing for Sexual Violence Crimes
A Introduction
B Procedure as an Obstacle to Effective Sentencing Advocacy
C A Snapshot of Sexual Violence Sentences at ICTY
D Crafting a Prosecution Sentencing Recommendation
1 Discerning gravity: An uncertain starting point
(a) Inherent gravity of sexual violence crimes
(b) Scale and scope of crimes
(c) Role in the crimes
(d) Victim impact
(e) Distinguishing gravity from aggravating circumstances
2 Aggravating circumstances in sexual violence cases
(a) Sexual violence per se
(b) Vulnerability of victims
(c) Violence, humiliation, and cruelty
(d) Enthusiastic participation
(e) Abuse of positions of seniority or authority
3 Mitigating circumstances in sexual violence cases
(a) Cooperation with the Prosecution
(b) Guilty plea
(c) Remorse and conduct during the trial
(d) Personal circumstances
E Restitution and Compensation for Victims
F Execution of Sentences and Early Release
1 Pardon or commutation
2 A false equivalency: Early release versus conditional release
3 A comparative perspective: The Special Court for Sierra Leone
G Conclusions and Fundamental Insights for the Future
9 The Picture of Sexual Violence in the Former Yugoslavia Conflicts as Reflected in ICTY Judgments
A Introduction
B Situating Sexual Violence as Part of the Conflicts in the Former Yugoslavia
C Characteristics of Sexual Violence as Reflected in ICTY Judgments
1 Scale and prevalence of sexual violence
2 Situations in which sexual violence was perpetrated
(a) Sexual violence during takeovers and forcible transfer campaigns
(b) Sexual violence in prison settings
3 Characteristics of sexual violence
(a) Sexual violence and interrogation
(b) Sexual violence perpetrated in front of others
(c) Ethnic motivations expressed by perpetrators
(d) Degrading and humiliating treatment
4 Range of victims
(a) Age of victims
(b) Female victims
(c) Male victims
5 Range of perpetrators
(a) Direct perpetrators and those closely associated
(b) Higher-level accused
(c) Implications of the ‘pyramid model’ of prosecutions for the picture of sexual violence
D Missing Pieces of the Picture?
1 Geographical locations missing from the picture or with limited emphasis
2 Omission of certain types of charges
E A Systematic Policy of Sexual Violence?
F Conclusions and Fundamental Insights for the Future
10 Using the OTP’s Experience with Sexual Violence Prosecutions as a Springboard for Building National Capacity
A Introduction
B A Snapshot of the Challenges Encountered in National Sexual Violence Prosecutions
C The OTP’s Involvement in Building National Capacity for Sexual Violence Prosecutions in the Former Yugoslavia
1 Early national capacity building initiatives
(a) Reviewing case files from national systems for sufficiency of evidence
(b) Assisting vetting processes as an element of institutional reform in post-conflict societies
2 Adoption of ICTY Completion Strategy: Increasing focus on national prosecutions
(a) Transfer of ICTY sexual violence cases to be prosecuted at the national level
(i) Transfer of three Rule 11bis cases involving sexual violence
a The two Foča cases: Janković and Stanković
b The Prijedor case: Mejakić, Gruban, Fuštar, Knežević
c The 11bis transfer process and impact
d Integrating gender perspectives into the process of transferring cases from the international to the national level
(ii) Transfer of ten Category II cases involving sexual violence
(a) Providing national authorities with access to the OTP evidence collection including materials concerning sexual violence crimes
(b) Other OTP information, expertise and peer-to-peer transfers to national authorities in support of sexual violence prosecutions
(c) The OTP’s work towards a more comprehensive and coordinated approach to war crimes training including for sexual violence prosecutions in the former Yugoslavia
(d) Community education regarding conflict-related sexual violence
3 The OTP’s future capacity building focus for sexual violence prosecutions
(a) Peer-to-peer support
(b) Improving national approaches to compensation for sexual violence victims
D Other ICTY Developments Promoting Improved National Capacity for Sexual Violence Prosecutions
1 Applying ICTY substantive law and procedural approaches to sexual violence prosecutions in BiH
(a) ICTY substantive law
(b) ICTY evidentiary and procedural rules
(c) ICTY adjudicated facts
2 Scope for further improving the application of ICTY precedents in the former Yugoslavia
3 Applying ICTY experience, substantive law, and procedural approaches to sexual violence prosecutions globally
E The OTP’s Role in Global Capacity Building for Conflict-related Sexual Violence Prosecutions
F Conclusions and Fundamental Insights for the Future
11 Conclusions: Situating the OTP’s Experience in a Broader Global Context
A Introduction
B The Intersection between Prosecuting and Preventing Conflict-related Sexual Violence and other Gender-related Harm
C The Intersection between Prosecuting and Documenting Conflict-related Sexual Violence and other Gender-related Harm
D The Intersection between Prosecuting Sexual Violence Crimes at the National and International Levels around the World
E Final Word
Further Material
Annex A The Picture of Sexual Violence in the Former Yugoslavia Conflicts as Reflected in ICTY Cases
A Introduction
B ICTY Findings on Sexual Violence Incidents
1 Bosnia and Herzegovina
(a) Serb and Bosnian Serb perpetrators
(i) Banja Luka (Brđanin, Krajišnik, Plavšić,Mladić,Karadžić)
(ii) Bijeljina (Plavšić, Krajišnik, Stanišić and Simatović, Mladić, Karadžić, Slobodan Milošević)
a Batković camp
(iii) Bosanski Šamac (Todorović, Milan Simić, Blagoje Simić et al., and Stanišić and Simatović)
(iv) Brčko (Krajišnik, Češić, Stanišić and Župljanin, Karadžić, and Slobodan Milošević)
a Luka camp
(v) Bosanska Krupa (Plavšić, Brđanin)
(vi) Bosanski Petrovac (Plavšić, Brđanin)
(vii) Doboj (Plavšić,Stanišić and Župljanin, and Stanišić and Simatović)
(viii) Donji Vakuf (Plavšić,Brđanin, and Stanišić and Župljanin)
(ix) Foča (Kunarac et al., Zelenović, Plavšić, Krajišnik, Mladić, Karadžić)
(x) Gacko (Krajišnik, and Stanišić and Župljanin)
(xi) Hadžići (Krajišnik, Plavšić,Karadžić)
(xii) Kalinovik (Krajišnik, Kunarac et al., Plavšić,Mladić)
(xiii) Kotor Varoš (Brđanin, Krajišnik, Plavšić,Stanišić and Župljanin, Mladić )
a Kotor Varoš police station
b Pilana sawmill/Kotor Varoš sawmill
(xiv) Novo Sarajevo (Krajišnik, Plavšić, Karadžić)
a Grbavica commune
(xv) Prijedor (Kvočka et al., Brđanin, Krajišnik, Plavšić, Stakić, Sikirica et al., Mejakić et al., Banović, Tadić, Stanišić and Župljanin, Mladić, Karadžić, Slobodan Milošević)
a Omarska camp
b Keraterm camp
c Trnopolje camp
(xvi) Rogatica (Krajišnik, Plavšić, Mladić, Karadžić)
(xvii) Sanski Most (Plavšić,Mladić,Karadžić, and Stanišić and Simatović)
(xviii) Teslić (Plavšić,Brđanin)
(xix) Višegrad (Vasiljević, Lukić and Lukić, Plavšić, Krajišnik, Stanišić and Župljanin)
(xx) Vlasenica (Plavšić, Dragan Nikolić, Stanišić and Župljanin, Mladić, Karadžić)
a Sušica camp
(xxi) Vogošća (Plavšić, Krajišnik, Stanišić and Župljanin, Karadžić)
a The Bunker
b Planjo’s house
(xxii) Zvornik (Krajišnik, Plavšić, Šešelj, Stanišić and Simatović, Stanišić and Župljanin, Karadžić)
a Dom Kulture/ Čelopek Dom
b Ekonomija Farm
(xxiii) Srebrenica (Popović et al., Tolimir, Krstić, Blagojević and Jokić, Mladić, Karadžić)
(b) Bosnian Muslim and foreign Muslim perpetrators
(i) Konjic (‘Čelebići’)
(ii) Vozuća pocket (Delić)
a Kamenica Camp
(c) Bosnian Croat perpetrators
(i) Vitez municipality (Blaškić, Kordić and Čerkez, Furundžija, Bralo)
a Nadioci
(ii) Kiseljak municipality (Blaškić, Kordić and Čerkez)
(iii) Prozor (Prlić et al.)
(iv) Mostar (Prlić et al., Rajić, Naletilić and Martinović)
a Tobacco Institute in Mostar
b Vinko Martinović’s base
(v) Vareš (Prlić et al., Rajić)
a Vareš town
b Stupni Do village
2 Croatia
(a) Croatian Serb and Serbian perpetrators
(i) SAO Krajina (Martić, and Stanišić and Simatović)
(ii) SAO SBWS (Stanišić and Simatović, Mrkšić et al., Šešelj, Hadžić)
a Vukovar
(b) Croatian perpetrators
(i) RSK (Gotovina et al.)
3 Kosovo
(a) Serbian perpetrators
(i) Srbica/Skenderaj (Milutinović et al.)
(ii) Priština/Prishtinë (Milutinović et al., Đorđević)
(iii) Dečani/Deçan (Milutinović et al., Đorđević)
(b) Kosovo Albanian Perpetrators (Haradinaj et al.)
Annex B Charges and Outcomes in ICTY Cases Involving Sexual Violence
Index
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Table of Cases
Edited By: Baron Serge Brammertz, Michelle Jarvis
From:
Prosecuting Conflict-Related Sexual Violence at the ICTY
Edited By: Baron Serge Brammertz, Michelle Jarvis
Content type:
Book content
Product:
Oxford Scholarly Authorities on International Law [OSAIL]
Published in print:
01 April 2016
ISBN:
9780198768562
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