The ICTY was tasked with prosecuting the enormous number of human rights violations that were committed in Bosnia during the war. Although it had a number of successes and was generally well-viewed by the public, the Tribunal faced setbacks and many cases of wartime sexual violence have most likely remained unpunished. As the Tribunal essentially had an expiration date from the start, local jurisdictions – such as the Court of BiH – have played a crucial role in completing its work and building on the precedents it set. The establishment of the ICTY Conflict-related sexual violence (CRSV), which was particularly prevalent during the war in the Former Yugoslavia, is set apart from sexual crimes outside of war zones by the fact that it is oftentimes used systematically as a weapon of war by belligerent parties in order to secure military objectives. Thus, it is not uncommon for wartime sexual violence to be committed as part of an “ethnic cleansing” or genocidal campaign. For example, CRSV can be committed with the intention of terrorizing a population to the point that they never wish to return to the land they were expelled from. In response to the vast violations of humanitarian law that were being committed in Bosnia and Herzegovina (BiH) and the surrounding region, the United Nations Security Council (UNSC) Resolution 827 (1993) set up the International Criminal Tribunal for the Former Yugoslavia (ICTY) (Bridget Quitter, 2013. This Tribunal, alongside the International Criminal Tribunal for Rwanda (ICTR), was the first international criminal court since the Nuremberg and Far East trials, and shone a light on the atrocities that took place in the Former Yugoslavia – where tens of thousands of women, men and children were victims of sexual violence, opening up a space for survivors to testify and help bring perpetrators to justice. Article 4 of the ICTY Statute allowed the court to prosecute genocide, and – under its definition of this crime – established that genocide can take place through “causing serious bodily or mental harm to members of the group” (Statute of the International Criminal Tribunal for the Former Yugoslavia). While not explicitly stated, rape and other forms of sexual violence can fall into this category, and thus the Statute paved the way for sexual violence to be tried not just as a weapon of war, but one of genocide as well. Likewise, Article 5 of the Statute gave the Tribunal the power to try those who commit enslavement, torture, and rape in armed conflict, under the umbrella of “crimes against humanity.” This facilitated both explicitly (by mentioning rape as a crime) and implicitly (considering that sexual slavery and sexual torture can fall into the categories of “enslavement” and “torture”) the prosecution of sexual violence in conflict. However, as the ICTY did not establish “sexual slavery” as a crime against humanity, and thus lacked the ability to directly try it as such ( as opposed to prosecuting this form of sexual violence under the “broader crime of enslavement as a crime against humanity”), it was not until the Special Court for Sierra Leone (SCSL) was set up that sexual slavery was recognized as a crime against humanity by a Statute (UN Department of Peacekeeping Operations, 2010). As of August 2016, 78 people, or 46% of the 161 accused of war crimes by the ICTY, were indicted with charges of sexual violence, including rape, while 32 of those indicted with such charges were convicted (ICTY, “In Numbers”). The MICT was set up to perform functions previously fulfilled by the ICTY after it closed in 2017 (IRMCT, “About”). In the period leading up to its closing, the ICTY also transferred cases to local jurisdictions, such as the Court of Bosnia and Herzegovina (Court of BiH). The effectiveness of the ICTY in trying CRSV The ICTY was successful in many ways. It paved the way for reconciliation through the establishment of a body that would at least attempt to ensure war crimes were not left unpunished. One way the Tribunal’s success is made apparent is through the public’s positive opinion and trust in the court. According to a 2021 article published by the International Criminal Justice Review, which surveyed victims of human rights violations in BiH who testified before the ICTY or the Court of BiH, respondents were more likely to see the ICTY as fair when compared to the Court of BiH (Ivković et al., 2021). However, this does not mean the public had no trust in the Court of BiH. While the study reported higher trust in the ICTY than the Court of BiH, a 2007 survey found that Bosnian victims still saw the Court of BiH as the only “fair” domestic court (Ivković and Hagan, 2016).
Defense Report
Sexual Violence Cases at the ICTY: The Effectiveness of the Tribunal and the Complementary Role of the Court of BiH | Balkan Diskurs
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