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«Dissertation zur Erlangung des Doktorgrades der Juristischen Fakultät der Universität Regensburg vorgelegt von Kathrin Greve Erstberichterstatter: ...»

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3. Difficulties in prosecuting sexual violence as a Crime against Humanity Crimes against Humanity, finally, presuppose an attack against a civilian population and are not commonly associated with sexual violence against women, either.3231 Art. 5 ICTY is the Statute’s only explicit mention of rape, but not of other forms of sexual violence.3232 This has been criticised all the more as the prosecution of Crimes against Humanity was considered as particularly difficult.3233 A further point of criticism was that this norm, once more, does not address crimes against women per se, but crimes against women as members of a stable and permanent group. Therefore, the prohibition did not regard mass rapes or the damage done to single women, but the aim of such violence.3234 The international community has thus omitted a possibility of reflecting changes in international humanitarian law since the end of World War II by including sexual violence in each of the two Statutes’ articles, although this would have corresponded to newer interpretations,3235 Final report, annex II: Rape and Sexual Assault: A Legal Study, UN Doc. S/1994/674/Add.2 (Vol. I), 31 May 1995, paras. 13, 20, 28 f., 35; Meron, Rape, p. 426.

Charlesworth, Chinkin, Boundaries of international law, p. 321; Copelon, Surfacing Gender, p. 207.

Final report, annex II: Rape and Sexual Assault: A Legal Study, UN Doc. S/1994/674/Add.2 (Vol. I), 31 May 1995, paras. 34-36; see also Chinkin, Rape, p. 333; Webb, Genocide Treaty, p. 402.

Charlesworth, Chinkin, Boundaries of international law, p. 321.

Salzman, Rape Camps, p. 90.

Askin, War Crimes, p. 360; Copelon, Surfacing Gender, p. 204; Meron, Rape, p. 428; Steains, Gender Issues, p. 358-359.

Kesi!, Changes, p. 28.

Final report, annex II: Rape and Sexual Assault: A Legal Study, UN Doc. S/1994/674/Add.2 (Vol. I), 31 May 1995, paras. 13, 20, 28-29, 35.

which also considered rape to be subject of universal jurisdiction when committed as one of the crimes included in the Statutes.3236 Therefore, it was left to the two Tribunals to bridge the discrepancies between the norms included in the Statutes and the development of international humanitarian law.

III. Indictments of sexual violence as a crime under each one of the Statutes’ articles The Office of the Prosecutor was thus faced with the problem that sexual violence could only be prosecuted as a Crime against Humanity (Art. 5 ICTY, Art. 3 ICTR), and as a War Crime (Art. 4 ICTR and possibly Art. 3 ICTY by integrating Art. 27 Geneva Convention IV in the non-exhaustive list contained in Art. 3 ICTY3237). However, sexual violence could not be prosecuted directly under Art. 2, 4 ICTY and Art. 2 ICTR, without violating the principle of nulla poena sine lege.3238 This prompted the first Chief Prosecutor, Richard Goldstone, to interpret the notion of “sexual assault” contained in Rule 96 of the Rules of Procedure and Evidence as including forms of sexual violence like forcible sexual penetration, sexual harassment, enforced prostitution, sexual mutilation, enforced pregnancy, and enforced childbirth.3239 He further interpreted the Statutes to render possible the indictment of sexual violence not only as torture under Art. 3 and 5 ICTY, and rape under Art. 5 ICTY, but also implicitly under other provisions of these Articles, as well as under Art. 2, 4 ICTY.3240 The Office of the Prosecutor has since indicted different aspects of sexual violence (for example, sexual harassment, rape, sexual abuse of children, enforced prostitution) under all relevant acts the Statutes contain, i.e.

as torture or inhuman treatment and wilfully causing great suffering or serious injury • to body or health and thus as a Grave Breach of the Geneva Conventions of 1949 (Art.

2 b,3241 c3242 ICTY), as torture, cruel treatment, outrages upon personal dignity and as rape and thus as a • War Crime (Art. 3 ICTY, Art. 3 I a,3243 c3244 Geneva Convention, or without further Ibid., paras. 4-5.

Sellers, Okuizumi, Intentional Prosecution, p. 57.

Ibid.

Ibid., p. 51.

Bedont, Gender-specific provisions, p. 193; Sellers, Okuizumi, Intentional Prosecution, p. 57.

I.e. Prosecutor v. Zejnil Delalic, Zdravko Mucic, Hazim Delic, Esad Landzo, Initial Indictment, 19 March 1996, Counts 18, 21, paras. 24-25; Prosecutor v. Dragoljub Kunarac and Others, Indictment, 26 June 1996, ITCounts 3, 7, 11, 15, 23, 27, paras. 5.4-5.7, 6.6-6.11; Prosecutor v. Dragan Nikolic, First Amended Indictment, 12 February 1999, IT-01-46-I, Counts 16, 21, 26, 31, 36, 41, 46, paras. 44-59.

I.e. Prosecutor v. Dusko Tadic and Goran Borovnica, Indictment, 13 February 1995, IT-94-1-I, Count/para.

4.2; Prosecutor v. Dragan Nikolic, First Amended Indictment, 12 February 1999, IT-01-46-I, Counts 17, 22, 27, 32, 37, 42, 47, 50, 79, paras. 44-59, 82-83.

I.e. Prosecutor v. Dusko Tadic and Goran Borovnica, Indictment, 13 February 1995, IT-94-1-I, Count/para.

4.3; Prosecutor v. Zejnil Delalic, Zdravko Mucic, Hazim Delic, Esad Landzo, Initial Indictment, IT-96-21, 19 legal basis3245) or as a violation of Article 3 Common to the Geneva Conventions and of Additional Protocol II (Art. 4 II e3246 ICTR), as Genocide (Art. 4 II b,3247 c3248 ICTY, Art. 2 II a,3249 b3250 ICTR), • and in the alternatives enslavement,3251 torture,3252 rape,3253 persecution3254 and other • inhumane acts3255 and thus as a Crime against Humanity (Art. 5 ICTY, Art. 3 ICTR).





IV. Convictions of sexual violence as a crime under each one of the Statutes’ articles March 1996, Counts 19-20, 22-23, paras. 24-25; Prosecutor v. Dragoljub Kunarac and Others, Indictment, 26 June 1996, IT-96-23, Counts 4, 8, 16, 20, 24, 28, paras. 5.8, 5.9, 5.10, 6.14, 6.15, 6.16; Prosecutor v. Dragan Nikolic, First Amended Indictment, 12 February 1999, IT-01-46-I, Count 80, paras. 82-83; Prosecutor v. Miroslav Kvocka, Milojica Kos, Mlado Radic and Zoran Zigic, Amended Indictment, IT-98-30-PT, 31 May 1999, Count 16, paras. 9, 12, 39.

I.e. Prosecutor v. Dragan Nikolic, First Amended Indictment, 12 February 1999, IT-01-46-I, Counts 18, 23, 28, 33, 38, 43, 48, 51, paras. 44-59; Prosecutor v. Miroslav Kvocka, Milojica Kos, Mlado Radic and Zoran Zigic, Amended Indictment, IT-98-30-PT, 31 May 1999, Count 17, paras. 9, 12, 39.

I.e. Prosecutor v. Radovan Karadzic and Ratko Mladic, Initial Indictment, IT-95-5-I, 24 July 1995, Count 4, paras. 18, 20-22, 35; Prosecutor v. Anto Furundzija, Indictment as amended 2 June 1998, IT-95-17/1-PT, Counts 13-14, para. 26.

I.e. Prosecutor v. Jean-Paul Akayesu, Amended Indictment, 17 June 1997, ICTR-96-4, Count 15, paras. 12 A, B; Prosecutor v. Alfred Musema, Amended Indictment, 6 May 1999, ICTR-96-13-I, Count 9, para. 5.

I.e. Prosecutor v. Zeljko Mejakic and Others, Amended Indictment, 2 June 1998, IT-95-4, Counts 18.2, paras. 1, 2.6; Prosecutor v. Radovan Karadzic, Amended Indictment, IT-95-5/18-I, 28 April 2000, Counts 1, 2, para. 17 b; Prosecutor v. Ratko Mladic, Amended Indictment, IT-95-5/18-I, 10 October 2002, Counts 1-2, para.

34 b.

I.e. Prosecutor v. Ratko Mladic, Amended Indictment, IT-95-5/18-I, 10 October 2002, Counts 1-2, para. 34 c.

I.e. Prosecutor v. Jean-Paul Akayesu, Amended Indictment, 17 June 1997, ICTR-96-4, Counts1-2, paras.

12A, 12B; Prosecutor v. Alfred Musema, Amended Indictment, 6 May 1999, ICTR-96-13-I, Counts 1-3, paras.

5.7-4.10, 5.

I.e. Prosecutor v. Jean-Paul Akayesu, Amended Indictment, 17 June 1997, ICTR-96-4, Counts 1-2, paras.

12A, 12B; Prosecutor v. Alfred Musema, Amended Indictment, 6 May 1999, ICTR-96-13-I, Counts 1-3, paras.

5.7-4.10, 5.

I.e. Prosecutor v. Dragoljub Kunarac and Others, Indictment, 26 June 1996, IT-96-23, Counts 56, 61, paras.

10.8, 12.6.

I.e. Prosecutor v. Dragoljub Kunarac and Others, Indictment, 26 June 1996, IT-96-23, z.B. Counts 1, 5, 9, 13, 17, 21, 25, 32, paras. 5.8-5.10, 6.14-6.17, 8.2; Prosecutor v. Dragan Nikolic, First Amended Indictment, 12 February 1999, IT-01-46-I, Counts 15, 20, 25, 30, 35, 40, 45, paras. 44-57; Prosecutor v. Miroslav Kvocka, Milojica Kos, Mlado Radic and Zoran Zigic, Amended Indictment, IT-98-30-PT, 31 May 1999, Count 14, paras. 9, 12, 39.

ICTY: I.e. Prosecutor v. Dusko Tadic and Goran Borovnica, Indictment, 13 February 1995, IT-94-1-I, Count/para. 4.4; Prosecutor v. Dragoljub Kunarac and Others, Indictment, 26 June 1996, IT-96-23, Counts 37, 41, 45, 49, paras. 9.22-9.25.

ICTR: I.e. Prosecutor v. Jean-Paul Akayesu, Amended Indictment, 17 June 1997, ICTR-96-4-I, Count 13, paras.

12A, 12 B; Prosecutor v. Alfred Musema, Amended Indictment, 6 May 1999, ICTR-96-13-I, Count 7, para. 5.

I.e. Prosecutor v. Dusko Tadic and Goran Borovnica, Amended Indictment, 14 December 1995, IT-94-1-I, Count 1, para. 4; Prosecutor v. Dragoljub Kunarac and Others, Indictment, 16 July 1996, IT-96-23, Count 29, para. 7.12.

ICTY: I.e. Prosecutor v. Dragan Nikolic, First Amended Indictment, 12 February 1999, IT-01-46-I, Count 49, paras. 58-59; Prosecutor v. Miroslav Kvocka, Dragoljub Prcac, Milojica Kos, Mlado Radic, Zoran Zigic, Amended Indictment, 21 August 2000, IT-98-30-PT, Count 2, para. 25 c.

ICTR: I.e. Prosecutor v. Jean-Paul Akayesu, Amended Indictment, 17 June 1997, ICTR-96-4-I, Count 14, paras.

12 A, B.

Even more important than the charging of sexual rape under every one of the Statutes’ Articles is the conviction of perpetrators of sexual violence under these norms. Contrary to expectations, ICTY and ICTR have judged rape and other forms of sexual violence to constitute Grave Breaches of the Geneva Conventions, War Crimes, Genocide, and Crimes against Humanity.

One case will be analysed in more detail for each of these four crimes.

–  –  –

The judgment regarding crimes committed in Celebici camp3258 is the first ICTY judgment addressing rape; Hazim Delic was convicted under both Art. 2 and 3 ICTY for having raped female camp internees Grozdana Cecez and Milojka Antic.3259 It was also the first ICTY case regarding more than one accused,3260 and the first one in which the accused are not Serbs.3261 The case addressed the internment of Serb, mostly male civilians, by Bosnian Muslims in Celebici camp, close to Konjic in Bosnia-Herzegovina.3262 The interns were subjected to arbitrary killings, torture, rape and grave mistreatment; in consequence, all interns suffered from the permanent atmosphere of terror pervading the camp.3263 Besides, hygienic conditions were indescribable, food and water was insufficient, and sleeping conditions were crammed.3264 Three of the accused, Zejnil Delalic, Zdravko Mucic, and Hazim Delic, were indicted for sexProsecutor v. Zejnil Delalic, Zdravko Mucic, Hazim Delic, Esad Landzo, Trial Chamber II, Judgment, 16 October 1998, IT-96-21-T, Testimony of Grozdana Cecez, Transcript of 17 March 1997, p. 493.

Prosecutor v. Zejnil Delalic, Zdravko Mucic, Hazim Delic, Esad Landzo, Trial Chamber II, Judgment, 16 October 1998, IT-96-21-T, Testimony of Milojka Antic, Transcript of 3 April 1994, p. 1780.

Prosecutor v. Zejnil Delalic, Zdravko Mucic, Hazim Delic, Esad Landzo, Judgment, Trial Chamber II, 16 October 1998, IT-96-21-T.

Prosecutor v. Zejnil Delalic, Zdravko Mucic, Hazim Delic, Esad Landzo, Initial Indictment, 19 March 1996, IT-96-21, paras. 25-26, Counts 21-23, 24-26; Prosecutor v. Zejnil Delalic, Zdravko Mucic, Hazim Delic, Esad Landzo, Trial Chamber II, Judgment, 16 October 1998, IT-96-21-T, paras. 943, 965, 1285, Counts 18-19, 21-22.

McDonald, Trial Procedures and Practices, p. 589; Swaak-Goldman, Prosecutor v. Delali!, p.

518.

Swaak-Goldman, Prosecutor v. Delali!, p. 518.

Prosecutor v. Zejnil Delalic, Zdravko Mucic, Hazim Delic, Esad Landzo, Trial Chamber II, Judgment, 16 October 1998, IT-96-21-T, paras. 1131-1134.

Ibid., para. 1116.

Ibid., paras. 1112-1119; see also Final report, annex IX: Rape and Sexual Assault, UN Doc.

S/1994/674/Add.2 (Vol. V), 31 May 1995, paras. 144-147.

ual violence, Hazim Delic being the only one accused of being principal perpetrator according to Art. 7 I ICTY.3265 Witnesses Grozdana Cecez and Milojka Antic both testified in public session and without protective measures about the sexual violence they had been made to suffer.3266 Grozdana Cecez was interned in Celebici on 27 May 1992 and raped by Hazim Delic the first evening, in the presence of two other men and after having been questioned by Delic. She was told that her husband’s activities were the reason for her internment.3267 Three days later, she was raped in one night by three men. Hazim Delic raped her once more in July 1992.3268 Milojka Antic also was raped three times by Hazim Delic. He committed the first rape on the evening of her internment on 15 June 1992, during an interrogation.3269 Hazim Delic was armed during the rape and threatened Milojka Antic, a virgin,3270 with her transfer to another camp and with shooting her, if she did not obey him. He did not respond to her pleas not to touch her, which she uttered while crying.3271 The next day, Delic came to the door of the room where Milojka Antic was imprisoned, and she started crying. He told her, “Why are you crying? It won’t be your last time.” Milojka Antic testified having been so miserable that she continually cried. It had been as if she was going crazy.3272 She was raped a second time after she had bathed on Hazim Delic’s orders. She was led to the room where she had been raped the first time and where Hazim Delic sat on the table, with his pistol and gun beside him. Milojka Antic again began to cry from fear. He told her to undress, while she asked him again and again not to touch her and said she was ill. However, she followed his orders out of fear.

Delic told her to kneel on the bed and turn her back towards him. He then penetrated her anus with his penis, while she cried out in pain. He did not manage to fully penetrate her, and she started bleeding. Hazim Delic then turned her over and penetrated her vaginally. After the rape, Milojka Antic continued crying and felt very ill. The medical doctors Grozdana Cecez had alerted gave her tranquilisers. 3273 Hazim Delic raped her one more time vaginally, while Prosecutor v. Zejnil Delalic, Zdravko Mucic, Hazim Delic, Esad Landzo, Trial Chamber II, Judgment, 16 October 1998, IT-96-21-T, para. 810.

Sharratt, Interview with Patricia Viseur Sellers, p. 70-71.

Prosecutor v. Zejnil Delalic, Zdravko Mucic, Hazim Delic, Esad Landzo, Trial Chamber II, Judgment, 16 October 1998, IT-96-21-T, para. 937.

Ibid., para. 938.

Ibid., para. 955.



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