Prosecuting conflict-related sexual violence at the ICTY PDF
Preview Prosecuting conflict-related sexual violence at the ICTY
PROSECUTING CONFLICT-R ELATED SEXUAL VIOLENCE AT THE ICTY Prosecuting Conflict-Related Sexual Violence at the ICTY Edited by SERGE BRAMMERTZ and MICHELLE JARVIS 1 1 Great Clarendon Street, Oxford, OX2 6DP, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © the several contributors 2016 The moral rights of the authors have been asserted First Edition published in 2016 Impression: 1 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer Crown copyright material is reproduced under Class Licence Number C01P0000148 with the permission of OPSI and the Queen’s Printer for Scotland Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America British Library Cataloguing in Publication Data Data available Library of Congress Control Number: 2016933786 ISBN 978–0–19–876856–2 (hbk.) 978–0–19–876857–9 (pbk.) Printed and bound by CPI Group (UK) Ltd, Croydon, CR0 4YY Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work. This book is dedicated to the thousands of victims of sexual violence committed during the conflicts in the former Yugoslavia. Without their courage in speaking out, there would be far fewer prospects of improving the accountability process in the future. Foreword by Phumzile Mlambo- Ngcuka The establishment of the International Criminal Tribunal for the former Yugoslavia (ICTY) marked a watershed moment in the history of international law on women in conflict. Its governing statute included one of the first explicit formulations of rape as a crime against humanity and marked an intentional effort to make people aware of what has been one of history’s greatest silences— sexual violence in conflict. Since then, the ICTY, alongside the International Criminal Tribunal for Rwanda (ICTR) and the Special Court for Sierra Leone, have been responsible for foundational juris- prudence on conflict- related sexual and gender- based crimes as well as for important changes in the rules of procedure in relation to victims of these crimes. As the ICTY transfers its judicial documents to the International Residual Mechanism for Criminal Tribunals, it is critical that these past decades of experience gained and history made are captured, and translated into guidance to inform future processes that secure jus- tice and accountability for sexual- and gender- based crimes at both the international and— critically— the national level. Supporting investigations and prosecutions of sexual- and gender- based violence is a central component of UN Women’s work to strengthen women’s access to justice for conflict- related crimes. Ending impunity for sexual- and gender- based violence is one of the most challenging yet fundamental conditions for the restoration of the rule of law and the establishment of sustainable peace, post- conflict. It is for this reason that we have been proud partners of the ICTY’s legacy work that has culminated in this im- portant publication. It is also why we continue to support similar efforts by the ICTR and the Special Court of Sierra Leone. We firmly believe that these extensive bod- ies of knowledge that have been drawn from atrocities will lead other societies with similar histories towards justice and a lasting peace. Through knowledge products such as this, the Tribunal and the international community as a whole is adding to the resources and tools needed in order to secure justice and accountability for survivors of conflict- related sexual- and gender- based violence, and to achieve a more peaceful and inclusive future for all. Phumzile Mlambo- Ngcuka UN Under- Secretary- General and Executive Director of UN Women Foreword by Zeid Ra’ad Al Hussein Through its prosecutions and judgments, the ICTY has greatly contributed in high- lighting the widespread and extremely grave nature of sexual violence, and the fact that they may amount to international crimes. While working as a UN peacekeeper in the former Yugoslavia in 1994– 5, I wit- nessed first- hand the devastating impact of these crimes on the survivors, whether women, men, girls, or boys. This had a profound effect on me, and I was then, and re- main today, outraged that such crimes are so prevalent, and yet those responsible are so seldom held to account. I commend the superb work of Serge Brammertz and Michelle Jarvis in so compel- lingly assembling and analysing the ICTY experience. I hope this publication will gal- vanize efforts to further accountability for these crimes, whether perpetrated during conflict or in peace time, and thus contribute to bringing justice to the many victims, wherever they are. High Commissioner Zeid Ra’ad Al Hussein United Nations Office of the High Commissioner for Human Rights Preface In 2009, a year into my work as Prosecutor of the International Criminal Tribunal for the former Yugoslavia (ICTY), colleagues within the Office began speaking with me about the importance of documenting our legacy on prosecuting conflict- related sexual violence crimes. They made a compelling case that, as one of the institutions at the forefront of establishing a new accountability path for these crimes, we had a crucial opportunity to reflect on two decades of work— a crucial opportunity to make our insights and experience available for others who will carry on the accountability process in the future. And while we were already well into our mandate, it was also obvious that the proposed process of reflection and review still had potential to in- form and strengthen our approach to sexual violence charges pending in our final cases. There was no question that the initiative deserved the support and full backing of the Office. In the years that followed, as we moved ahead with our review, we were confronted by the seemingly intractable nature of conflict- related sexual violence. In the 1990s, the world had reacted with outrage to the reports of widespread sexual violence in Bosnia and Herzegovina, with estimates ranging from between 12,000 and 70,000 victims.1 Demands were made for new and effective strategies to stamp out the odious practice. Concern over sexual violence was one of the factors that helped galvanize support for the Security Council to establish the ICTY as a novel measure under Chapter 7 of the United Nations Charter. But a short time later, an estimated 250,000 to 500,000 women and girls were raped during the months- long Rwandan genocide.2 To this we can add an estimated 215,000 to 257,000 victims of sexual violence dur- ing the Sierra Leonean civil war.3 In 2010, the UN Special Representative on Sexual Violence in Conflict described the Democratic Republic of Congo as ‘the rape capital of the world’,4 with estimates that forty eight women were raped every hour.5 In the decades- long conflicts in Colombia and Guatemala, there have been tens of thousands of conflict- related sexual violence crimes. It is a refrain that continues today, with thousands of women and girls held in sexual slavery by ISIS, while tens of thousands more have suffered rape, torture, mutilation, and other forms of sexual violence in places like Syria, the Central African Republic, and South Sudan. Men too are vulner- able to sexual violence in conflict zones around the world. 1 Chapter 2. 2 UNCHR Fifty- second session 29 January 1996, ‘Report on the Situation of Human Rights in Rwanda submitted by Mr René Degni- Ségui, Special Rapporteur of the Commission on Human Rights, under paragraph 20 of resolution S- 3/ 1’ (25 May 1994) UN Doc E/ CN.4/ 1996/ 68 para 16. 3 Physicians for Human Rights, ‘War- Related Sexual Violence in Sierra Leone: A Population- Based Assessment’ (2002) 4. 4 UNSC, ‘Provisional Minutes of 6302nd Meeting’ (27 April 2010) UN Doc S/ PV.6302 p 4. 5 Amber Peterman, Tia Palermo, and Caryn Bredenkamp, ‘Estimates and Determinants of Sexual Violence Against Women in the Democratic Republic of Congo’ (June 2011) 101(6) Am J Public Health 1064, 1065.
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