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

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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 1997, p. 1787.

Prosecutor v. Zejnil Delalic, Zdravko Mucic, Hazim Delic, Esad Landzo, Trial Chamber II, Judgment, 16 October 1998, IT-96-21-T, para. 958.

Ibid., para. 959.

Ibid., para. 960; see also testimony of Milojka Antic, Transcript of 3 April 1997, p. 1786.

he was armed with a hand grenade, a pistol and a gun. He threatened her and cursed her „Cetnik-mother“, saying the Cetniks were to blame for everything that was happening.3274 The Trial Chamber found that there was an international armed conflict in BosniaHerzegovina at least between April and the end of December 19923275 and that the persons mentioned in the Indictment were protected by Geneva Convention IV and thus by Art. 2 ICTY.3276 There was a nexus between the armed conflict and the acts detailed in the Indictment.3277 The Chamber developed a definition of rape3278 and torture3279 and stated that vaginal penetration by a penis in circumstances that are coercive for the victim constitute rape.3280 Hazim Delic had inflicted serious psychological and physical pain and suffering;3281 the rapes were committed intentionally by a representative of the Bosnian authorities running the camp,3282 and the perpetrator committed the rapes in pursuit of a goal.3283 The Chamber accordingly convicted Hazim Delic of torture pursuant to Art. 2 b ICTY, and of wilfully causing great suffering, pursuant to Art. 2 c ICTY, in respect to the rapes committed.3284 He was sentenced to twenty years’ imprisonment.3285 Prosecutor v. Zejnil Delalic, Zdravko Mucic, Hazim Delic, Esad Landzo, Trial Chamber II, Judgment, 16 October 1998, IT-96-21-T, para. 1269.

Ibid., para. 234, upheld in Prosecutor v. Zejnil Delalic, Zdravko Mucic, Hazim Delic, Esad Landzo, Appeals Chamber, Judgment, 20 February 2001, IT-96-21-A, para. 51.

Prosecutor v. Zejnil Delalic, Zdravko Mucic, Hazim Delic, Esad Landzo, Trial Chamber II, Judgment, 16 October 1998, IT-96-21-T, paras. 274, 1132-1133, 1142, upheld in Prosecutor v. Zejnil Delalic, Zdravko Mucic, Hazim Delic, Esad Landzo, Appeals Chamber, Judgment, 20 February 2001, IT-96-21-A, para. 106.

Prosecutor v. Zejnil Delalic, Zdravko Mucic, Hazim Delic, Esad Landzo, Trial Chamber II, Judgment, 16 October 1998, IT-96-21-T, para. 444.

This corresponds to the ICTR’s definition in Akayesu, see Prosecutor v. Jean-Paul Akayesu, Trial Chamber I, Judgment, 2 September 1998, ICTR-96-4-T, paras. 598, 688. The Chamber sitting in Celebici stated that it saw no reason to depart from these conclusions, see Prosecutor v. Zejnil Delalic, Zdravko Mucic, Hazim Delic, Esad Landzo, Trial Chamber II, Judgment, 16 October 1998, IT-96-21-T, paras. 478-479.

Prosecutor v. Zejnil Delalic, Zdravko Mucic, Hazim Delic, Esad Landzo, Trial Chamber II, Judgment, 16 October 1998, IT-96-21-T, para. 494: “(i) There must be an act or omission that causes severe pain or suffering, whether mental or physical, (ii) which is inflicted intentionally, (iii) and for such purposes as obtaining information or a confession from the victim, or a third person, punishing the victim for an act he or she or a third person has committed or is suspected of having committed, intimidating or coercing the victim or a third person, or for any reason based on discrimination of any kind, (iv) and such act or omission being committed by, or at the instigation of, or with the consent or acquiescence of, an official or other person acting in an official capacity”.

Ibid., para. 940.

Ibid., paras. 942, 964.

Ibid., paras. 940, 962.

Ibid., para. 941.

Ibid., paras. 943, 965, 1119, 1121. The rapes were also violations of Art. 3 ICTY, 3 I a Geneva Convention, see ibid. The convictions under Art. 2 c ICTY were upheld by Prosecutor v. Zejnil Delalic, Zdravko Mucic, Hazim Delic, Esad Landzo, Appeals Chamber, Judgment, 20 February 2001, IT-96-21-A, paras. 518, 527.

Ibid., paras. 1262-1263, 1249, Counts 18-19, 21-22.

2. Sexual violence as a War Crime (Art. 3 ICTY, Art. 4 ICTR): Anto Furundzija Anto Furundzija was commander of the “Jokers“, an elite unit within the armed forces of the Croat community in Bosnia-Herzegovina. This unit had its quarters in Nadioci in central Bosnia. On or about 16 May 1993, Witness D, a member of the “Jokers”, was arrested, interrogated and beaten by Furundzija and Accused B. 3286 About two days later, a married Bosnian Muslim from Vitez, Witness A, a friend of D’s, was imprisoned by members of the “Jokers”, brought to their quarters and questioned by Anto Furundzija about the alleged activities of her husband and children.3287 During her interrogation by Furundzija, Witness A was forced to undress in a big room full of soldiers from his unit.3288 The Accused B then ran a knife over the insides of her thighs and threatened to push it into her vagina and cut out her genitals, if she did not tell the truth.3289 Furundzija did not stop his interrogation which culminated in his threat to confront Witness A with another person, Witness D. 3290 He then left the room and left Witness A with the Accused B, who continued to sexually assault, abuse, and rape her.3291 She was then given a small sheet with which to cover herself, and she was brought to another, smaller room, a pantry.3292 In the pantry, Witness A and Witness D, who had been severely beaten previously,3293 were both beaten on the soles of their feet by Accused B. He then raped Witness A orally, vaginally, and anally, and forced her to lick his penis clean, while Anto Furundzija continued his interrogation and other members of his unit watched and laughed at what was happening.3294 Witness D, too, was beaten and forced to watch the rapes and sexual assaults of a woman who was his friend.3295 Witness A testified that there was a direct link between Furundzija’s frustration at her answers and the increasing intensity of the sexual assaults by the Accused B.3296 The Chamber decided that Art. 3 ICTY was applicable on the circumstances of the case.3297 It went on to define torture in international humanitarian law on the basis of the Torture Convention3298 and stated that rape under this definition qualifies as torture.3299 However, dependThe judgment contains no indication as to why the Accused B did not appear in The Hague.





Prosecutor v. Anto Furundzija, Trial Chamber II, Judgment, 10 December 1998, IT-95-17/1-T, paras. 122, 124.

Ibid., para. 124.

Ibid., para. 264.

Ibid., para. 264.

Ibid., paras. 125-126.

Ibid., para. 83.

Ibid., para. 267 ii.

Ibid., paras. 266, 272.

Ibid., paras. 127, 267 ii.

Ibid., para. 82; also see para. 266.

Ibid., para. 65.

Ibid., para. 162: “(i) it consists of the infliction, by act or omission, of severe pain or suffering, whether physical or mental; (ii) the act or omission must be intentional; (iii) it must aim at obtaining information or a ing on the circumstances of the case, rape can also constitute a crime distinct from torture.3300 The Chamber also elaborated a definition of rape in international humanitarian law3301 and stressed that oral sexual penetration also can be rape.3302 According to the Chamber, Witness A had been subjected to cruel, inhuman, and degrading treatment, as well as threats of serious physical abuse by the Accused B, while she was being questioned by Anto Furundzija in the large room. They both had the intention of obtaining information they believed would help the Croat armed forces, but also to humiliate and degrade Witness A. The interrogation and the attacks became one sequence of events,3303 causing serious physical and psychological pain and public humiliation.3304 Therefore, the conditions of torture were present and Anto Furundzija was convicted of being a co-perpetrator of the torture committed by B, pursuant to Art. 7 I ICTY,3305 qualifying as a war crime pursuant to Art. 3 ICTY.3306 Anto Furundzija was sentenced to ten years imprisonment.3307 As regards the acts in the pantry, the Chamber concluded that Witness A was raped by the Accused B. 3308 Anto Furundzija did not rape Witness A and cannot be considered a coperpetrator. However, his presence and continuing interrogation of Witness A encouraged B and thus substantially contributed to the crimes committed by him.3309 Anto Furundzija was thus convicted of aiding and abetting rape pursuant to Art. 7 I ICTY, which qualifies as a war confession, or at punishing, intimidating, humiliating, or coercing the victim or a third person, or at discriminating, on any ground, against the victim or a third person; (iv) it must be linked to an armed conflict; (v) at least one of the persons involved in the torture process must be a public official or must at any rate act in a nonprivate capacity, e.g. as a de facto organ of a State or any other authority-wielding entity”, upheld in Prosecutor v. Anto Furundzija, Appeals Chamber, Judgment, 21 July 2000, IT-95-17/1-A, para. 111.

Prosecutor v. Anto Furundzija, Trial Chamber II, Judgment, 10 December 1998, IT-95-17/1-T, para. 163 quotes Human Rights Committee, General Comment No. 20 concerning prohibition of torture and cruel treatment or punishment, 10 March 1992; Reports of the Special Rapporteur on Torture, for example E/CN.4/sub.

2/1985/6, E/CN.4/1986/15, E/CN.4/1987/13; Public Statements of the European Committee for the Prevention of Torture, CPT/inf (93) 1, 15 December 1992, CPT/Inf (96), 6 December 1996; Zekri Aksoy v. Turkey, ECHR Judgment of 18 December 1996, para. 61; Sükran Aydin v. Turkey, ECHR Judgment of 25 September 1997, paras. 62-88; Inter-American Commission on Human Rights, Dr. Fernando Mejía Egocheaga and Raquel Martín de Mejia v. Peru, Decision of 1 March 1996, Report No. 5/96, Case No. 10.970, www.cidh.oap.org/annualrep/95eng/Peru10970.htm (12 November 2004), p. 17-19; Report of the Special Rapporteur on Torture, Mr. Nigel P. Rodley, submitted pursuant to Commission on Human Rights resolution 1992/32, 12 January 1995, UN Doc. E/CN.4/1995/34, paras. 15-24.

Prosecutor v. Anto Furundzija, Trial Chamber II, Judgment, 10 December 1998, IT-95-17/1-T, para. 164.

Ibid.

Ibid., para. 183.

Ibid., paras. 124, 264, 266.

Ibid., paras. 125-126.

Ibid., para. 267 i; upheld in Prosecutor v. Anto Furundzija, Appeals Chamber, Judgment, 21 July 2000, ITA, paras. 120-121.

Prosecutor v. Anto Furundzija, Trial Chamber II, Judgment, 10 December 1998, IT-95-17/1-T, IT-95-17/1T, para. 269.

Ibid., para. 296; upheld in Prosecutor v. Anto Furundzija, Appeals Chamber, Judgment, 21 July 2000, IT-95A, para. 254.

Prosecutor v. Anto Furundzija, Trial Chamber II, Judgment, 10 December 1998, IT-95-17/1-T, para. 271.

Ibid., para. 273.

crime pursuant to Art. 3 ICTY.3310 He was sentenced to eight years imprisonment,3311 to run concurrently.3312 This case is the first prosecution of war crimes based only on counts of sexual violence. 3313 By contrast with other cases of sexual violence before the ICTY, which address the situation of women or girls held prisoners over a long period of time, this case is singular because at its centre are sexual assault and rape committed in the course of one day. This stresses that sexual attacks are war crimes in their own right.3314

3. Sexual violence as Genocide (Art. 3 ICTY, Art. 2 ICTR): Jean-Paul Akayesu The first judgment discussing rape as a tool of genocide issued by either ICTY or ICTR is the one convicting Jean-Paul Akayesu.3315 This conviction could only be based on rape and sexual violence because two female witnesses spontaneously testified to rape during proceedings, which led to the amendment of the Indictment.3316 The case addresses crimes committed during the genocide in Taba commune, Gitarama préfecture, in central Rwanda. The attacks against Tutsis were primarily directed against teachers and other intellectuals3317 and caused the killing of at least 2,000 Tutsis in Taba alone,3318 as well as the commission of other crimes, including sexual violence.3319 Jean-Paul Akayesu was born in Taba commune in 1953 and was a teacher and school inspector.3320 He was elected bourgmestre of Taba commune in 1991 and exercised these functions until July 1994.3321 As bourgmestre, he was responsible for law and order in the commune3322 Ibid., para. 275.

Ibid., para. 296; upheld in Prosecutor v. Anto Furundzija, Appeals Chamber, Judgment, 21. Juli 2000, IT-95A, para. 254.

Prosecutor v. Anto Furundzija, Trial Chamber II, Judgment, 10 December 1998, IT-95-17/1-T, para. 296;

upheld in Prosecutor v. Anto Furundzija, Appeals Chamber, Judgment, 21 July 2000, IT-95-17/1-A, para. 254.

McDonald, Trial Procedures and Practices, p. 596.

McDonald, Trial Procedures and Practices, p. 596; Bundesministerium/Mischkowski, Foca-Prozess, p. 149.

ICTR/INFO-9-2-059, Arusha, 1 July 1997, p. 1.

Prosecutor v. Jean-Paul Akayesu, Judgment, Trial Chamber I, 2 September 1998, ICTR-96-4-T, paras. 416see also Second Annual Report ICTR, 13 November 1997, UN Docs. A/52/582, S/1997/868, para. 12.

Prosecutor v. Jean-Paul Akayesu, Trial Chamber I, Judgment, 2 September 1998, ICTR-96-4-T, paras. 173, 312-314.

Ibid., para. 181.

Prosecutor v. Jean-Paul Akayesu, Amended Indictment, 17 June 1997, ICTR-96-4, paras. 12A, B.

Prosecutor v. Jean-Paul Akayesu, Trial Chamber I, Judgment, 2 September 1998, ICTR-96-4-T, paras. 5, 50Ibid., para. 54.

Ibid., para. 180.



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