[Series] Prosecuting War Crimes: Progress on Prosecuting Sexual Violence Crimes

The Bosnian conflict is best understood by looking back in history to the founding of Yugoslavia. In 1943, the six republics of Serbia, Montenegro, Slovenia, Macedonia, and Bosnia-Herzegovina came together under a banner of “brotherhood and unity.”[1] This was an effort to resist ethnic, national, and religious loyalties that the Axis invaders of World War 2 wished to exploit. The dream of “brotherhood and unity” lasted five decades, the decline came with the rise of Serbian politician Slobodan Milosevic, who pushed a Serbian nationalist agenda aimed at centralizing power. Milosevic was able to rise to power due to the economic decline of Yugoslavia, and his ability to blame ethnic outsiders and pushing for Serbian power only served to consolidate his position. Tensions boiled over, and in April, 1992 war broke out. Three ethnic groups were in opposition of each other: the Bosnian-Serbs, backed my Milosevic, Bosnian-Croats, backed by then Croatian president, Frando Tudjman, and Bosnian Muslims known as Bosniaks.[2] It was in this war that lasted four years that the world held witness to some of the most unspeakable war crimes of the latter half of the 20th century.

It was during this conflict that the world bore witness in near live-cast fashion, to the use of rape as a weapon of war. Historians and ordinary citizens alike watched in horror as the calculated use of sexual violence was used to commit genocide through ethnic cleansing. Attempts at cleansing religious and ethnic groups were made by either impregnating or shaming the women of various populations. Special “rape camps” were extremely common during the conflict, within which the International Criminal Tribunal for the former Yugoslavia (ICTY) estimates an estimated 20,000 to 50,000 women and girls were raped, forcibly impregnated and given diseases. Many were Bosniaks or Bosnian Muslims, ranging from six years of age to seventy years of age.

The consequences of these atrocities were far reaching and affect women in the area to this day. Many of the women were forcibly impregnated and released only after they passed the threshold where abortion was possible. Long-term depression, social phobia, PTSD, and sexual disfunctions are common. Some became infertile as a result of the horrible mistreatment they suffered during the conflict.[3]

In order to prosecute these and other war crimes committed during the conflict, the United Nations Security Council (UNSC) exercised powers vested by the United Nations Charter to establish the International Criminal Tribunal for the former Yugoslavia (ICTY).[4] The birth of the ICTY seemed in many respects a throwback to the Nuremburg Tribunals, however there is a stark difference between the two that solidify the ICTY as an independent precedent for international criminal prosecution. The ICTY was established not in agreement between nations that had jurisdiction over the crimes as in the case of Nuremburg, but by the independent action of the UNSC. This was an important step, because it put forth the idea that the UNSC would not sit idly by and watch these atrocities, but would utilize powers under Chapter VII of the United Nations Charter and seek to “maintain or restore international peace and security.”[5]

As previously mentioned, one of the most important cases that the ICTY tried was against Dusko Tadic, a Bosnian Serb commander of paramilitary forces charged with genocide, gross transgressions against the Fourth Geneva Convention, and various crimes against humanity.[6] Tadic was the first defendant on trial, and as a result would be the precedent against which all other trials would be measured. Tadic’s trial was not only a test of the ICTY’s efficacy, but the power of the UNSC to establish ad hoc tribunals in response to international crises.[7]

The tribunal had to defend against two main points in Mr. Tadic’s trial: first, that the UNSC exceeded its powers under Chapter VII and second, that the tribunal was an illegal body because it was not established “by law.”[8]

To the first issue, the establishment of a tribunal was necessary and available under Chapter VII which states that the UNSC can “decide what measures shall be taken in order to…maintain or restore international peace and security.” The breakdown of the former state of Yugoslavia and the ensuing violence and atrocities were a clear candidate for Chapter VII to apply. As per the chapter, the UNSC had the authority to use non-military means to implement decisions, these means include but are not limited economic and diplomatic sanctions.[9] Further, the UNSC has the ability to create any “subsidiary organs necessary for the performance of its functions.”[10]

Tadic’s second point of contention was the more difficult of the two because it claimed that the tribunal had no right to prosecute due to the internationally recognized right of individuals to be prosecuted by tribunals established by law. Mr. Tadic contended that as a tribunal established by a UNSC resolution, it would be a violation of his civil, political, and human rights. The tribunal is not encumbered by this issue because tribunals established by law applied to national and not international court, due to the lack of an international legislature. Further, it was established that so long as the tribunal conferred all relevant international human rights and was grounded in a rule of law, there was no violation. Beyond this, the tribunal could be considered established “by law” because the United Nations charter conferred a legal right to the UNSC to establish tribunals.

The authority of the UNSC to create tribunals firmly in place, the ICTY has become a precedent in prosecuting international crimes. The ICTY has shown the world that an individual’s position in government means nothing and that leaders suspected of crimes against humanity will be prosecuted. To date, 161 individuals accused of genocide, crimes against humanity, and complicity with war crimes have been indicted.[11] 83 individuals including Mr. Tadic have been sentenced, while others have died in custody. Moving forward, the national judiciaries of the Bosnian Herzegovinian federation, Serbian, and Croatian governments have begun to prosecute war criminals independently of the ICTY.

 

About the Author: Hojae Chung is a 2L at Penn State Law.

* This is the first part of a series on the progress on prosecution of war crimes.

---

 

[1] Tim Judah, Yugoslavia 1918-2003, BBC History http://www.bbc.co.uk/history/worldwars/wwone/yugoslavia_01.shtml#three

[2] Larissa Petola, Rape as a tool of War and Genocide: An Examination of its Historical and Contemporary Tactical Uses, Effects on Victims and Societies and Psychological Explanations, https://www.cmc.edu/sites/default/files/humanrights/Rape%20as%20a%20tool%20of%20war.pdf

[3] Mladen Loncar, Vesna Medved, Nikolina Jovanovic, Ljubomir Hotujac, Psychological Consequences of Rape on Women in 1991-1995 War in Croatia and Bosnia and Herzegovina, U.S. National Library of Medicine, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2080379/

[4] Resolution 827, http://www.icty.org/x/file/Legal%20Library/Statute/statute_827_1993_en.pdf

[5]CHAPTER VII: ACTION WITH RESPECT TO THREATS TO THE PEACE, BREACHES OF THE PEACE, AND ACTS OF AGGRESSION, Article 39, Charter of the United Nations http://www.un.org/en/sections/un-charter/chapter-vii/index.html

[6] International Criminal Tribunal for the former Yugoslavia http://www.icty.org/en/press/tadic-case-verdict

[7] The Hague, The Tribunal’s first trial : another step in the fulfillment of the Tribunal’s mandate, International Criminal Tribunal for the former Yugoslavia http://www.icty.org/en/sid/7361

[8] International Criminal Tribunal for the former Yugoslavia http://www.icty.org/en/sid/7242

[9] CHAPTER VII: ACTION WITH RESPECT TO THREATS TO THE PEACE, BREACHES OF THE PEACE, AND ACTS OF AGGRESSION, Article 41, Charter of the United Nations http://www.un.org/en/sections/un-charter/chapter-vii/index.html

[10] CHAPTER V: THE SECURITY COUNCIL, Article 29, Charter of the United Nations http://www.un.org/en/sections/un-charter/chapter-v/index.html  

[11]Key Figures of the Case, International Criminal Tribunal for the former Yugoslavia http://www.icty.org/en/cases/key-figures-cases