ASIL Insights

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The defendants were charged with torture, as a crime against humanity, under Article 5(f) of the Statute of the Tribunal, and as a violation of the laws or  customs of war, under Article 3 of the Statute and recognized by Common Article 3(1)(a) of  the 1949 Geneva Conventions.  They were also charged with rape, as a crime against humanity, under Article 5(g) of the Statute and as a violation of the laws or customs of war, under Article 3 of the Statute.  Finally, two of the defendants (Kunarac and Kovac) were charged with enslavement as a crime against humanity, under Article 5(c) of the Statute. These charges were brought pursuant to both Article 7(1) of the Statute (individual criminal responsibility ) and, with respect to Mr. Kunarac, Article 7(3) of the Statute (command responsibility).

The eight month long trial included testimony of sixty-three witnesses, including sixteen victims of rape held for months in sexual slavery and subjected to multiple gang rapes by the defendants and others. Elaborate measures were taken to protect the identity of the victims. Although they directly faced their accusers, the victims were identified by numbers, spoke through voice scramblers and were hidden from public view to protect their privacy.

The town of Foca was overrun by Serb forces in April 1992. The women and children from the Foca region were taken to collection points, such as Buk Bijela, a settlement south of Foca. From there, they were transferred by bus to Foca High School, where they were detained. Some of them were later taken to other places in and around Foca, such as private houses and apartments and the Partizan Sports Hall.

The conditions in these detention centers were deplorable. There were no hygiene facilities and the provision of food was inadequate and sporadic.  Women and girls were threatened with guns and knives, raped within the centers and taken out to be raped. Some women who testified before the Tribunal had been taken out so often, by so many soldiers, that they were consequently unable to assess with precision the number of times they had been raped.. The evidence revealed that this occurred with the knowledge of the local authorities. The local police officers "helped guard the women, and even joined in their mistreatment when approached [by the victims] for help against their oppressors."

The testimony indicated that Serb forces raped dozens of Muslim women and girls, some as young as 12 years old. The defendants were identified by victims as being among those who would come to these detention centers at night to rape the women, or take them away to work in "quasi brothels" used by soldiers.  Some women were "rented," others were sold.  One 12 year old who was sold by one of the accused has not been heard of since.

Kunarac commanded a reconnaissance unit of the Bosnian Serb army and Kovac and Vukovic were paramilitary leaders. The defendants acknowledged that they had taken part in the Serb military campaign in Foca, but denied the charges of torture, rape and enslavement.

In holding that the evidence supported the charges of rape and enslavement, the presiding judge, Judge Florence Mumba, emphasized the grave nature of the offenses. "What the evidence shows," she said in a statement read in open court, "are Muslim women and girls, mothers and daughters together, robbed of their last vestiges of human dignity. Women and girls, treated like chattels, pieces of property at the arbitrary disposal of the Serb occupation forces, and more specifically at the beck and call of the three accused."

The Tribunal found that the actions of the three accused "were part of a systematic attack against Muslim civilians."  The Tribunal reasoned:

They knew that one of the main purposes of that campaign was to drive the Muslims out of the region. They knew that one way to achieve this was to terrorize the Muslim civilian population in a manner that would make it impossible for them ever to return.  They also knew of the general pattern of crimes, especially of detaining women and girls in different locations where they would be raped. The actions of all three accused...show beyond any doubt their knowledge of the detention centres, and of the practice of systematically transferring the women and girls to locations where they would be abused by Serb men.

The Tribunal flatly rejected the soldiers' claim that they were only following orders.  Judge Mumba explained, "The three accused were not just following orders, if there were such orders to rape Muslim women. The evidence shows free will on their part."

One key issue with respect to the charges brought against Kunarac was command responsibility.  The Tribunal understood the law of command responsibility as follows:

"A superior-subordinate relationship must exist for the recognition of this kind of responsibility.  However, such a relationship cannot be determined by reference to formal status alone. Accordingly, formal designation as a commander is not necessary for establishing command responsibility, as such responsibility may be recognized by virtue of a person's de facto, as well as de jure, position as a commander. What must be established is that the superior had effective control over subordinates . That means that he must have had the material ability to exercise his powers to prevent and punish the commission of the subordinates' offenses." [Decision at para. 396]

The Tribunal noted that "the temporary nature of a military unit is not, in itself, sufficient to exclude a relationship of subordination between the members of a unit and its commander. [Para. 399] Nonetheless, the Tribunal  found that the "prosecutor failed to show that the soldiers who committed the offenses charged in the indictment were under the effective control of Kunarac at the time they committed the offenses" and thus Kunarac could be held responsible only for the crimes he had committed.

This case represents a significant advance in the international law pertaining to the treatment of sexual violence in wartime.  First, the decision demonstrates that rape will not be accepted as an intrinsic part of war.  Rather, it is a crime against humanity and may constitute torture. The Tribunal sent a message that it would prosecute cases of sexual violence vigorously.  That the accused were low-level soldiers was of no consequence. Judge Mumba made clear that "lawless opportunists should expect no mercy, no matter how low their position in the chain of command may be."

Second, although this Tribunal, as well as the International Criminal Tribunal for Rwanda (ICTR), has dealt with rape in the past, this was the first to focus entirely on wartime crimes of sexual violence.  It was also the first decision by the ICTY to issue convictions for rape as a crime against humanity.  The detailed discussion of the elements of rape in the decision, including a broad survey of domestic legal systems, will serve as an important guide in future cases [see paras. 436-464].

Third, while other international tribunals have considered the crime of torture, the Tribunal's authoritative discussion of the law of torture and its application to sexual violence cases is groundbreaking.  After a review of relevant authorities, the Trial Chamber concluded that the definition of torture under international humanitarian law does not comprise the same elements as the definition of torture generally applied under human rights law. In particular, the Trial Chamber was "of the view that the presence of a state official or of any other authority-wielding person in the torture process is not necessary for the offense to be regarded as torture under international humanitarian law." [Para. 496]. The Trial Chamber held that, "in the field of international   humanitarian law, the elements of the offense of torture, under customary international law are as follows:

(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. " [Para. 497]

Fourth, the decision recognized the instrumental nature of rape in wartime. Judge Mumba rejected the phraseology "systematic rape employed as a weapon of war," because "this could be understood to mean a kind of concerted approach or an order given to the Bosnian Serb armed forces to rape Muslim women as part of their combat activities in the wider meaning." The Tribunal found that there was insufficient evidence for such a finding. Instead, in the case at hand rape was "used by members of the Bosnian Serb armed forces as an instrument of terror, an instrument they were given free rein to apply whenever and against whomever they wished." This understanding of rape as an instrument of terror can be applied in other cases where the evidence does not prove the existence of a direct order to rape.

Finally, this decision was the first by an international tribunal to result in convictions for enslavement as a crime against humanity. The war crime tribunals after World War II considered slavery as an economic crime, not as a crime against humanity, nor did those tribunals regard sexual violence as a form of enslavement. The Tribunal  defined enslavement broadly as "a crime against humanity in customary international law consist[ing] of the exercise of any or all of the powers attaching to the right of ownership over a person." [Para. 539] Factors to be taken into consideration in determining whether enslavement was committed included "control of someone's movement, control of physical  environment, psychological control, measures taken to prevent or deter escape, force, threat of force or coercion, duration, assertion of exclusivity , subjection to cruel treatment and abuse, control of sexuality and  forced labour." [Para. 543] Although two of the women who testified were sold as chattels by Radomir Kovac for 500 Deutsch Marks each, the Tribunal found that enslavement of the women did not necessarily require the buying or selling of a human being.  This broader definition of slavery can be applied in sexual slavery cases in the future.

This case notwithstanding, the ICTY and ICTR have had a spotty record on sexual violence allegations.  The ICTR has yet to act regarding sexual violence and the prosecutor for the ICTY has yet to issue indictments with respect to sexual violence committed in Kosovo. This decision may provide the impetus for future international criminal investigations and prosecutions for sexual violence and sexual slavery.

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