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

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Officer of the Prosecutor with a view to better meet demands for effective indictments of sexual violence.3409 Further, a seminary on sexual violence in Arusha was held in 1998.3410 These activities contributed to the first ICTR indictment of sexual violence being issued during Arbour’s term of office.3411 It is hardly surprising that the issue was neglected in the ICTR’s first years, since the former deputy Chief Prosecutor, Honoré Rakotomana, had stated his belief that African women were not going to talk about rape,3412 and since investigations at this stage were inadequate and involved few women.3413 In the proceedings against Akayesu, where Rakotomana led the all-male prosecution team, sexual violence originally was not indicted and only included in the Indictment after a female witness had spontaneously testified to rape, as described above. There were further Indictments of sexual violence in Arbour’s term of office, which led to convictions.3414 At the ICTY, there had already been Indictments of sexual violence during Chief Prosecutor Richard Goldstone’s term of office, supported amongst others by Judge Elizabeth Odio Benito.3415 However, Arbour’s input finally rendered proceedings possible.3416 In particular, Kovac was arrested and subsequently convicted for rape as a war crime and a crime against humanity. Besides, during Arbour’s term of office, there was a “normalisation” of addressing sexual violence,3417 which no longer was felt as disquieting or shocking. The ICTY had developed a judicial framework and methods of investigation for sexual abuse cases, as well as a consciousness for the impact an interpreter’s sex may have in such cases.3418 Arbour’s efforts could only improve the prosecution of sexual violence because there was enough staff supporting her in prioritising the prosecution of these crimes.3419 In this context, the role of the Legal Advisor for Gender-specific Crimes, Patricia Viseur Sellers, is essential.

In her view, the difference between ICTY and ICTR on the one hand and IMT and IMTF on the other, is that now, allegations of sexual violence are subject to investigations carried out Third Annual Report ICTR, 23 September 1998, UN Docs. A/53/429, S/1998/857, para. 49.

Ibid., para. 72.

See Coomaraswamy, Annex Ruanda, 4 February 1998, UN Doc. E/CN.4/1998/54/Add.1, para. 45; Bedont, Gender-specific provisions, p. 203; Human Rights Watch/Des Forges, Leave None to tell the Story, p. 744.

“African women don’t want to talk about rape (…). We haven’t received any real complaints. It’s rare in investigations that women refer to rape”, see Human Rights Watch/FIDH interview, Judge Honoré Rakotomanana, deputy prosecutor, International Criminal Tribunal, Kigali, March 27, 1996, in: Human Rights Watch/Nowrojee, Shattered Lives, p. 95.

Coomaraswamy, Annex Rwanda, 4 February 1998, UN Doc. E/CN.4/1998/54/Add.1, paras. 48-51.

Prosecutor v. Alfred Musema, Trial Chamber I, Judgment and Sentence, 27 January 2000, ICTR-96-13-T, para. 936; Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze, Trial Chamber I, Summary of Judgment, 3 December 2003, ICTR-99-52-T, paras. 10, 64, p. 29-30.

Goldstone, Prosecuting Rape as a War Crime, p. 282.

Hagan, Justice in the Balkans, P. 221 f.; Wäspi, Arbeit des ICTY und ICTR, p. 2449, 2451-2453.

Sharratt, Interview with Patricia Sellers, p. 55.

Sharratt, Interview with Patricia Sellers, p. 55; see also Möller, Sexuelle Gewalt im Krieg, p. 280.

See Sharratt, Interview with Patricia Viseur Sellers, p. 55. For the efforts of the women working on the “Foca” case see Hagan, Justice in the Balkans, p. 177-178, 185, 187, 202.

with determination - she has called the OTP’s efforts “intentional prosecution“3420 -, while comparable allegations were not followed up rigorously in Nuremberg or Tokyo.3421 Sellers shares the feminist view that the private is political, which in turn was to to be included into the OTP’s prosecution strategies. 3422 Sellers played an important role in the Indictments of Anto Furundzija and Dragoljub Kunarac and others. Both Indictments nearly exclusively address sexual violence against women, which is outstanding when seen in context with the earlier prosecution of War Crimes before international Tribunals.3423 By issuing them, OTP has stated that sexual violence by itself can constitute a War Crime and a Crime against Humanity, which can not be overestimated. There is no doubt that the creation of Seller’s position has enhanced both the ICTY’s approach to sexual violence and international discussion of this subject.3424 In spite of all the OTP staff’s efforts, Judge Odio Benito felt justified in her fear that Indictments would not adequately reflect sexual violence against women.3425 This necessitated great efforts of the few female judges.

2. Contribution of female judges It is striking that at least one female judge contributed to all Trial Chamber decisions chosen for this thesis because of their discussion of sexual violence,3426 whereas mostly only male Sharratt, Interview with Patricia Viseur Sellers, p. 68; see also Goldstone, Prosecuting Rape as a War Crime, p. 279.

Sharratt, Interview with Patricia Sellers, p. 68.

Sellers, Gender-Specific Crimes, p. 117.

Sharratt, Interview with Patricia Sellers, p. 67; Steains, Gender Issues, p. 380-381.

Women’s Rights Unit, Sexual Violence and armed conflict, p. 7.

Sharratt, Interview with Elizabeth Odio Benito, p. 44.

Judge Odio Benito participated in the decisions Prosecutor v. Dragan Nikolic, Trial Chamber I, Decision on Review of Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, 20 October 1995, IT-94-2R61; Prosecutor v. Radovan Karadzic and Ratko Mladic, Review of the Indictment pursuant to Rule 61 of the Rules of Procedure and Evidence, 11 July 1996, IT-95-5&18-R61 and Prosecutor v. Zejnil Delalic, Zdravko Mucic, Hazim Delic, Esad Landzo, Trial Chamber II, Judgment, 16 October 1998, IT-96-21-T;

Judge Mumba sat on Prosecutor v. Anto Furundzija, Trial Chamber II, Judgment, 10 December 1998, IT-95T; Prosecutor v. Dragoljub Kunarac and others, Trial Chamber II, Judgment, 22 February 2001, IT-96-23T & IT-96-23/1-T; Prosecutor v. Dragan Nikolic, Trial Chamber II; Sentencing Judgment, 18 December 2003, IT-94-2-S;

Judge Wald contributed to Prosecutor v. Radislav Krstic, Trial Chamber I, Judgment, 2 August 2001, IT-98-33T; Prosecutor v. Miroslav Kvocka and Others, Trial Chamber I, Judgment, 2 November 2001, IT-98-30/1-T;

Judge McDonald participated in Prosecutor v. Dusko Tadic, Trial Chamber II, Decision on the Prosecutor’s Motion Requesting Protective Measures for Victims and Witnesses, 10 August 1995, IT-94-I-T; Prosecutor v.

Dusko Tadic, Trial Chamber II, Opinion and Judgment, 7 May 1997, IT-94-1-T; Prosecutor v. Dusko Tadic, Sentencing Judgment, 11 November 1999, IT-94-T bis-R117, and Judge Pillay sat on Prosecutor v. Jean-Paul Akayesu, Trial Chamber I, Judgment, 2 September 1998, ICTRT; Prosecutor v. Jean-Paul Akayesu, Trial Chamber I, Sentencing Decision, 2 October 1998, ICTR-96-4-T;

Prosecutor v. Alfred Musema, Trial Chamber I, Judgment and Sentence, 27 January 2000, ICTR-96-13-T.

judges were sitting on the Appeals Chamber.3427 Because of the small number of female judges at both Tribunals, which at times consisted of only one at both ICTY3428 and ICTR, 3429 the presence of a female judge in these cases is not self-evident. Of course, their presence might be a coincidence. In fact, however, several incidents indicate that the female judges “discovered” sexual violence if it was not already at the core of the Indictment,3430 and then also made sure that it was addressed. What happened in the proceedings against Akayesu has already been described. The only female judge on the case, the South African feminist3431 Navanethem Pillay, who was experienced in cases of sexual or gender-specific violence, 3432 insisted, and the crimes were included in the Amended Indictment signed by Arbour. Akayesu was duly convicted of aiding and abetting rape and sexual assault. According to feminist observers, it is unlikely that the Judgement would have become as gender-sensitive without Pillay’s efforts.3433 Navanethem Pillay’s achievements led to the inclusion of norms regarding the equitable representation of women at the ICC, 3434 as well as the employment of staff having experience with sexual and gender-specific violence in the ICC Statute.3435 There were similar incidents at the ICTY. Judge Elizabeth Odio Benito recalled that one of the first Indictments she was presented with, against Dusko Tadic, contained no count regarding rape, whereupon she publicly addressed Goldstone, pleading, “Don’t forget the women”.3436 The judgment later determined that sexual violence had been committed in the camps of Omarska, Keraterm and Trnopolje.3437 It was also Judge Odio Benito who decisively contributed to including sexual violence in the Nikolic Indictment after the Rule 61 B hearing. Sexual violence had not been addressed in the Initial Indictment, although all the acts had allegedly been committed in an area where mass This does not apply to the decisions Prosecutor v. Dusko Tadic, Appeals Chamber, Judgment, 15 July 1999, IT-94-1-A and Prosecutor v. Dusko Tadic, Appeals Chamber, Judgment in Sentencing Appeals, 26 January 2000, IT-94-1-A und IT-94-1-Abis, in which Judge Mumba participated.

Ninth Annual Report ICTY, 4 September 2002, UN Docs. A/57/379, S/2002/985, para. 29.

SR Res. 1165/1998, 30 April 1998, para. 1.

This particularly applies to the Indictments Prosecutor v. Anto Furundzija, Amended Indictment, 2 June 1998, IT-95-17/1-PT; Prosecutor v. Dragoljub Kunarac and Radomir Kovac, Amended Indictment, 8 November 1999, IT-96-23-PT; Prosecutor v. Zoran Vukovic, Indictment, 5 October 1999, IT-96-23/1.

Sokoloff, Rwanda: A New Rape Definition, p. 18.

Goldstone, For Humanity, p. 115; Steains, Gender Issues, p. 380.

Askin, Sexual Violence, p. 98, Fn. 8; see also Goldstone, Prosecuting Rape as a War Crime, p. 282.

Steains, Gender Issues, p. 377-378; also see Women’s Caucus for Gender Justice in the International Criminal Court, Recommendations and Commentary for the March 1998 PrepCom: Part II (Procedures), 1998, p. 4, 16.

Steains, Gender Issues, p. 380.

Sharratt, Interview with Elizabeth Odio Benito, p. 41-42.

Prosecutor v. Dusko Tadic, Trial Chamber II, Opinion and Judgment, 7 May 1997, IT-94-1-T, paras. 154;

165 (Omarska), para. 175 (Trnopolje). See also Askin, Sexual Violence, p. 104; Hukanovi!, The tenth circle of hell, p. 44-45; Sellers, Emerging Jurisprudence, p. 148.

rapes had been reported.3438 Judge Odio Benito asked about incidents of sexual violence but was told that it had been impossible to collect evidence.3439 She still exhorted OTP staff, together with her male colleagues, to include sexual violence in the Indictment,3440 as a violation of Art. 2, 3, or 5 ICTY.3441 Judge Gabrielle Kirk McDonald, the then ICTY President, stated that in one case, although allegedly there was nothing to indicate that rapes had been committed, there were diverse testimonies in the files referring to it. One of them was by a medical doctor who had treated rape victims, but who had not been contacted by OTP to see if some of his patients would agree to testify. In a different case, there were even affidavits by rape victims, but the Prosecution did

not indict rape even after MacDonald had contacted the OTP representative:

We prepared a whole list of references to rape in the material. So when I confirmed the Indictment I said, “Now I want to get into something else. Rape has not been charged. Let me go through what I have found.” I went through it affidavit by affidavit. (..) They were shocked by that. (…) I saw the prosecutor a couple of days later at a party and he came over and said, “Gaby, I am sorry.” He acknowledged it and was personally committed to charging rape as a war crime, yet since he left us there has been no movement on this front. This case has gone on and there is no word of rape.3442 Apart from these cases, where without the female judges sexual violence would not even have been addressed, women were also working on all the definitions of rape and sexual violence.

Women’s contribution to the prosecution and conviction of sexual violence as analysed above demonstrates that without them, the progress made towards the integration of women’s experiences in armed conflicts into International Humanitarian Law would not have happened, or not in that way. Therefore, the implementation of a women’s quota of 50% at ICTY and Sharratt, Interview with Elizabeth Odio Benito, p. 44.


Prosecutor v. Dragan Nikolic, Trial Chamber I, Decision on Review of Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, IT-94-2-R61, 20. Oktober 1995, para. 33: “The Trial Chamber feels that the Prosecutor may be well advised to review these statements carefully with a view to ascertaining whether to charge Dragan Nikolic with rape and other forms of sexual assault, either as a crime against humanity or as grave breaches or war crimes. Without prejudice to any subsequent decision by the judges at trial, and having regard to the special provisions on this subject contained in the Rules, the Chamber considers that rape and other forms of sexual assault inflicted on women in circumstances such as those described by the witnesses, may fall within the definition of torture submitted by the Prosecutor.” For a description of the incident by Richard Golsdtone see Goldstone, Prosecuting Rape as a War Crime, p.

281: “In the view of the lawyers who worked on the Nikolic indictment, there was insufficient evidence to justify charging him with gender crimes. That, however, did not deter one of the two women judges on the Tribunal, Odio Bennito (sic), from raising the gender issue very forcefully early in the proceedings. In one of the early procedural applications, she publicly exhorted the Office of the Prosecutor to include gender crimes in the indictment. She relied on some of the testimony associated with the indictment and took the other two male members of her trial chamber with her.”; see also Steains, Gender Issues, p. 380.

Sharratt, Interview with Gabrielle Kirk McDonald, p. 30-31.

ICTR, as well as at comparable bodies like, for example, the Special Court for Sierra Leone is warranted in order to further the development of international humanitarian law, as well as the fulfilment of these bodies’ mandates.

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