In the context of the conflict in the former Yugoslavia and of the genocide in Rwanda, reports of sexual violence appeared regularly in the global media. Women's rights activists were instrumental in ensuring that the definition of crimes against humanity to be codified in the Statutes of the International Criminal Tribunals for the former Yugoslavia (established by Security Council resolution 827 of 25 May 1993) and Rwanda (established by Security Council resolution 955 of 8 November 1994) be framed in terms that would at least begin to take account of the reality of what was happening to women in those countries, by including rape in the definition of crimes against humanity. However, rape was left out in the definition of war crimes enshrined in both Statutes. NGOs and women lawyers played a crucial role in collecting evidence to ensure that the tribunals indicted the alleged perpetrators of sexual violence.
Historically, four international tribunals have been set up specifically to address criminal acts during armed conflict, and to tackle individual criminal liability for – inter alia – cases of war crimes and crimes against humanity. The International Military War Crimes Tribunal for Nazi War Criminals took place in Nuremberg, Germany, from 1945-6. The International Military Tribunal for the Far East (IMTTE) was set up in 1946, in Tokyo. Japanese war criminals were tried by a prosecution team from 11 of the allied nations.
The International Criminal Tribunal for the former Yugoslavia (ICTY) has jurisdiction to try people responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991. In accordance with its statute, the Tribunal has the power to prosecute people responsible for grave breaches of the Geneva Conventions of 12 August 1949, persons violating the laws and customs of war, persons who have committed genocide, and those who have perpetrated crimes against humanity against any civilian population in the context of an armed conflict.
The Statute of the International Criminal Tribunal for Rwanda (ICTR) gives it jurisdiction to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of Rwanda, and Rwandan citizens responsible for such acts committed in neighbouring states between 1 January 1994 and 31 December 1994. The Tribunal has the power to try people who have committed genocide, and crimes against humanity when committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds, as well as the power to prosecute violations of Article 3, common to the Geneva Conventions of 12 August 1949 and Additional Protocol II thereto of 8 June 1977.
The Office of the Prosecutor (OTP) for both tribunals pushed the boundaries of international law in bringing charges of rape, sexual assault, and mutilation in public indictments. The OTP has charged specific defendants with sexual violence as a war crime, a crime against humanity, genocide, enslavement, a grave breach, and enforced prostitution.
Despite this breakthrough, most of those charged with sexual violence are not in custody. However, a number of judgements are of particular significance in the recognition of sexual violence during armed conflict as a crime. In the first judgement by an international court for the crime of genocide, in September 1998, the ICTR convicted Jean-Paul Akayesu of genocide and crimes against humanity. This judgement was reaffirmed by the Appeals Chamber of the International Criminal Tribunal in 2000. The judgement was unprecedented at least in three respects. It was the first ever judgement by an international tribunal for the crime of genocide. It was also unprecedented in recognising that rape and sexual violence constitute genocide, if committed with the specific intent of destroying, in whole or in part, a particular targeted group. Lastly, the judgement provides the first ever definition of rape under international law.
In December 1998, the ICTY convicted Anto Furundzija, a former local commander of the Croatian military police unit, of war crimes. The Tribunal found that aiding and abetting in outrages upon personal dignity, including rape, constitutes a war crime (ibid.). The ICTY delivered an unprecedented judgement on 22 February 2001. On that occasion, the ICTY returned the first ever conviction of rape and of enslavement – including in particular for sexual purposes – as a crime against humanity.
The trial focused on the Serb campaign in the Foca region of Republika Srpska, where a large number of Muslim civilians, particularly women, were targeted as part of the armed conflict between Serb and Muslim forces from early 1992 to mid-1993.
The violence against Muslim civilians was intended to terrorise them and ultimately achieve their expulsion. Women and girls were rounded up from in and around the Foca region and detained. Once in detention, women and young girls were regularly moved to other locations to be raped. They were sold to other soldiers and were enslaved for months on end. The Trial Chamber found that the Muslim women and girls were ‘robbed of the 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.'