«Dissertation zur Erlangung des Doktorgrades der Juristischen Fakultät der Universität Regensburg vorgelegt von Kathrin Greve Erstberichterstatter: ...»
See for example Drakuli!, They Would Never Hurt a Fly, p. 61: “If it were not for The Hague, Kunarac, Kovac, and Vukovic would still be sitting in a café in Foca’s main street, smoking, drinking brandy, and telling anecdotes of the war. They would be met with the respect that war veterans get there. And if by accident one of the women they raped happened to pass by, they would point at her - and laugh.” The Chamber observed that the crimes committed in the context of an armed conflict were directed against the “Non-Serb“ civilian population of Foca.3368 The aim of the attack against Muslims was to obtain complete control over the town and the creation of a homogeneous Serb region. This strategy included the expulsion of Muslims through terror.3369 Rape was one of the tools of this strategy,3370 and highly successful: There were about 10 Muslims left in Foca at the end of the armed conflict.3371 All traces of Muslim life or culture had been erased;3372 in particular, all mosques had been destroyed.3373 In January 1994, the Serb authorities changed the town’s name, now situated in Republika Srpska,3374 to Srbinje (“town of Serbs“).3375 On the basis of these facts, the Trial Chamber decided that Art. 5 ICTY was applicable.3376 Only some of the incidents of sexual violence forming the basis for the convictions pursuant to Art. 5 ICTY are described here.
Prosecutor v. Dragoljub Kunarac and Others, Trial Chamber II, Judgment, 22 February 2001, IT-96-23-T & IT-96-23/1-T, para. 579.
Judgment of Trial Chamber II in the Kunarac, Kovac and Vukovic Case, Press Release, 22 February 2001, JL/P.I.P./566-e, p. 1.
Prosecutor v. Dragoljub Kunarac and Others, Trial Chamber II, Judgment, 22 February 2001, IT-96-23-T & IT-96-23/1-T, para. 47.
Ibid., para. 577.
Ibid., para. 46.
Ibid., para. 47.
Ibid., paras. 47, 577.
Ibid., para. 592.
Ibid., para. 460: “The actus reus of the crime of rape in international law is constituted by: the sexual penetration, however slight: (a) of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; or (b) of the mouth of the victim by the penis of the perpetrator; where such sexual penetration occurs without the consent of the victim. Consent for this purpose must be given voluntarily, as a result of the victim’s free will, assessed in the context of the surrounding circumstances. The mens rea is the intention to effect this sexual penetration, and the knowledge that it occurs without the consent of the victim”, upheld in Prosecutor v. Dragoljub Kunarac and Others, Appeals Chamber, Judgment, 12 June 2002, IT-96-23-A & IT-96A, para. 128.
Prosecutor v. Dragoljub Kunarac and Others, Trial Chamber II, Judgment, 22 February 2001, IT-96-23-T & IT-96-23/1-T, para. 497: “(i) The infliction, by act or omission, of severe pain or suffering, whether physical or mental. (ii) The act or omission must be intentional. (iii) The act or omission must aim at obtaining information or a confession, or at punishing, intimidating or coercing the victim or a third person, or at discriminating, on any ground, against the victim or a third person”, upheld in Prosecutor v. Dragoljub Kunarac and Others, Appeals Chamber, Judgment, 12 June 2002, IT-96-23-A & IT-96-23/1-A, paras. 148, 156.
both Art. 3 and 5 ICTY. Further, the Chamber elaborated a definition of enslavement,3382 parting from the Slavery Convention.3383 Radomir Kovac had been accused of raping and sexually enslaving four women or girls, who were aged between twelve and 25 years. 3384 All four of them were handed over to Radomir Kovac in his apartment in Foca, which he shared with another soldier, Jagos Kostic, on or around 30 October 1992. 3385 During the whole time the women were imprisoned there, between three weeks for FWS-75 and A.B.,3386 and four months for FWS-87 and A.S.,3387 they were continuously raped, humiliated, and degraded. Sometimes they were beaten or threatened by one of the two soldiers. Radomir Kovac once hit FWS-75 for refusing to have sexual intercourse with a soldier he had brought. 12-year-old A.B. was sent in her stead. Kovac also beat FWS-75 at other times.3388 Witnesses FWS-87 and A.S. were imprisoned for about four months in Radomir Kovac’s apartment. During this time, they were both continuously raped by Kovac and Jagos Kostic.3389 The latter claimed A.S,3390 while Kovac wanted FWS-87 exclusively for himself. Still, Kostic used Kovac’s absence to rape FWS-87, threatening to kill her if she were to inform Kovac.3391 Kovac forced FWS-87 to go to cafés with him, and at least once she had to wear the insignia of the Republika Srpska’s army.3392 The Defence submitted that FWS-87 was Kovac’s girl-friend,3393 and that A.S. was in his apartment because he could not separate the two girls.3394 The Chamber did not believe this – and FWS-87 consistently denied it3395 - and determined that Kovac knew at all times that the two girls had not consented. Kostic could Prosecutor v. Dragoljub Kunarac and Others, Trial Chamber II, Judgment, 22 February 2001, IT-96-23-T & IT-96-23/1-T, para. 540: “(…) the actus reus of the violation is the exercise of any or all of the powers attaching to the right of ownership over a person. The mens rea of the violation consists in the intentional exercise of such powers”, upheld in Prosecutor v. Dragoljub Kunarac and Others, Appeal Judgment, 12 June 2002, IT-96-23-A & IT-96-12/1-A, para. 124.
Prosecutor v. Dragoljub Kunarac and Others, Trial Chamber II, Judgment, 22 February 2001, IT-96-23-T & IT-96-23/1-T, paras. 519-537 mentions also additional international conventions, protocols, and the Statutes of IMT and IMTF.
Ibid., paras. 637-638, 749.
Ibid., para. 748.
Ibid., paras. 753-755.
Ibid., para. 760.
Ibid., para. 749.
Ibid., para. 760.
Ibid., para. 764.
Ibid., para. 761.
Ibid., para. 763.
Ibid., paras. 142-150.
Prosecutor v. Dragoljub Kunarac and Others, Testimony of Witness D.O., Transcript of 19 September 2000, p. 5909.
Prosecutor v. Dragoljub Kunarac and Others, Trial Chamber II, Judgment, 22 February 2001, IT-96-23-T & IT-96-23/1-T, para. 762.
rape them because Kovac let him stay at his apartment. Thus Kovac aided and abetted the raped committed by Kostic against A.S., whereas he did not know that Kostic also raped FWS-87.3396 In February 1993, two Montenegrin soldiers came to Kovac’s apartment and “bought” the two witnesses for 500 DM each.3397 A little later, the two girls were fetched by the soldiers.3398 The Chamber determined that Radomir Kovac held the four witnesses imprisoned and totally controlled their movements and subjected them to humiliating treatment, including beatings.3399 It found Radomir Kovac guilty of enslavement pursuant to Art. 5 c and of rape pursuant to Art. 5 g ICTY.3400 He was sentenced to 20 years imprisonment.3401
The progress made in adequately addressing sexual violence before ICTY and ICTR is partly due to a changed climate in world opinion, which has become more intolerant of human rights violations, even if committed during armed conflicts or by heads of State or government. But this climate still had to be implemented at the Tribunals, especially in addressing crimes committed against women. That it would be implemented was not self-evident, given the Tribunals’ character as subsidiary organs, pursuant to Art. 7 II of the Charter of the United Nations. Whilst Art. 8 of the same Charter provides, “The United Nations shall place no restrictions on the eligibility of men and women to participate in any capacity and under conditions of equality in its principal and subsidiary organs“, a provision which has for decades been the basis of efforts to ensure equality between men and women in the United Nations system, one Ibid., para. 761.
Ibid., para. 778.
Ibid., para. 779.
Ibid., para. 780.
Prosecutor v. Dragoljub Kunarac and Radomir Kovac, Amended Indictment, 8 November 1999, IT-96-23PT, para. 11.7, Counts 22-23, Prosecutor v. Dragoljub Kunarac and Others, Trial Chamber II, Judgment, 22 February 2001, IT-96-23-T & IT-96-23/1-T, paras. 782, 872. The crimes committed were also qualified as Rape and Outrages upon Personal Dignity, pursuant to Art. 3 ICTY, see ibid. Dragoljub Kunarac and Zoran Vukovic were equally convicted of crimes under Art. 3 and Art. 5 c, f, and g ICTY, committed by sexual violence, see ibid., paras. 685, 687, 704, 742, 745, 822, 882.
Prosecutor v. Dragoljub Kunarac and Others, Trial Chamber II, Judgment, 22 February 2001, IT-96-23-T & IT-96-23/1-T, para. 877.
Sharratt, Interview with Elizabeth Odio Benito, p. 46.
of the measures being a women’s quota,3403 these efforts have not been successful. Women continue to make up far less than 50% of UN staff, especially in the Professional posts. This has profoundly influenced the way violence against women is addressed.3404 The lacunae in international humanitarian law as regards sexual violence against women have been analysed in this summary. They have not been changed by the ICTY and ICTR Statutes, which largely reproduce international customary law. Accordingly, it is tempting to conclude that the now present political will to prosecute crimes against women and girls, implemented by the Tribunals’ staff and judges created a difference with respect to earlier international criminal prosecutions. The following chapter will analyse contributions of the female staff in the Office of the Prosecutor and of the few female judges to apply existing legal bases for addressing sexual violence against women in a way that reflects women’s experiences.
1. Contribution of female OTP staff “The women’s movement has demonstrated that the personal is political.
We endeavour to translate this principle in our internal policy.“ Patricia Viseur Sellers3405 Louise Arbour, the first female chief prosecutor of ICTY and ICTR, was nominated partly because of feminist lobbying.3406 She declared her intention of giving priority to genderspecific crimes. 3407 In 1997, she held a workshop on sexual violence at the ICTR, following which a special team of sexual violence investigators was created3408 and re-organised the In 1985, Secretary-General Pérez de Cuéllar proposed a proframme for women, aiming to employ women for 30% and 35% of Professional Posts by 1990 or 1995, respectively, see Improvement of the Status of Women in the Secretariat: Report of the Secretary-General, 8 November 1985, U.N. Doc. A/C.5/40/30. In his address on International Women’s Day 1993, Boutros Boutros-Ghali said that he aimed at employing women on 50% of the Professional Posts subject to geographical distribution, see U.N. Doc. E/CN.6/1993/15, para. 14. In 1994, he declared his intention of achieving full gender parity by 2000, see Report of the Secretary-General to the General Assembly on the Improvement of the Status of Women in the Secretariat, 1 November 1994, U.N. Doc.
A/49/587, paras. 5, 32; adopted in GA Res. 49/167, 23 December 1994, para. 2. The Secretary-General, however, declared one year later that this aim was not realistic, see Report of the Secretary-General on the Status of Women in the Secretariat, 13 September 1996, U.N. Doc. A/51/304, para. 34. For a summary see Charlesworth, Feminist Futures, p. 120-121; Charlesworth, Chinkin, Boundaries of international law, p. 183-184.
McDougall, Final Report, 22 June 1998, UN Doc. E/CN.4/Sub.2/1998/13, para. 13; Byrnes, Women, Feminism and International Human Rights Law, p. 216-223; Charlesworth, Chinkin, Boundaries of international law, p. 195; Cook, Women, p. 462-463; Reilly/Center for Women’s Global Leadership, Toward Greater Accountability, p. 147-148, 154-156.
For relevant examples for the neglect of the sitiation of women see the first reports of UN Special Rapporteur on Rwanda, see First Degni-Ségui Report on the situation of human rights in Rwanda, E/CN.4/1995/7, 28 June 1994; Second Degni-Ségui Report on the situation of human rights in Rwanda, E/CN.4/1995/12, 12 August 1994; Third Degni-Ségui Report on the situation of human rights in Rwanda, E/CN.4/1995/70, 11 November 1994, which do not address sexual violence against women, as do the resolution creating the ICTR, 955/1994, 8 November 1994 or The United Nations and Rwanda.
Sellers, Gender-Specific Crimes, p. 117.
Klein, Is War Crimes Prosecution in the Right Hands?, p. 22.
Second Annual Report ICTR, 13 November 1997, UN Docp. A/52/582, S/1997/868, para. 52, also see Askin, War Crimes, p. 301; Morris, Scharf, Rwanda, vol. 1, p. 387.
Second Annual Report ICTR, 13 November 1997, UN Docs. A/52/582, S/1997/868, para. 52; Third Annual Report ICTR, 23 September 1998, UN Docs. A/53/429, S/1998/857, paras. 52, 59.