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Background Paper On Sexual Violence Investigation And Prosecution

Tribunal Update 155: Last Week in The Hague (December 6-11, 1999)
By IWPR

Those investigations will further the OTP's policy of prosecution of sexual violence as serious violations of humanitarian law, the document states.


The Prosecutor pursues a gender-neutral policy for sex-based crimes, which means that, although females are overwhelmingly the targets of sexual violence in the former Yugoslavia and Rwanda, the OTP is committed to pursue such crimes against males and children.


Four out of six completed trials that have issued published verdicts (at two UN tribunals) found five of the accused guilty of numerous acts of sexual violence.


Among the landmark decisions was the Prosecutor v. Akayeshu case at the Arusha International Criminal Tribunal for Rwanda. In that case the Trial Chamber found rape and sexual violence to indeed "constitute genocide in the same way as any other act, as long as they were committed with the specific intent to destroy in whole or part a particular group targeted as such."


In The Hague, the Trial Chambers in the Celebici and Furundzija cases found sexual crimes to be at the level of torture, which can be sanctioned as a violation of the laws and customs of war or as grave breaches of the Geneva conventions.


Two ad-hoc tribunals for the Former Yugoslavia and Rwanda "have substantially advanced the development of sexual violence jurisprudence under international law", assessed the OTP document.


Four out of five accused convicted for rape and other forms of sexual violence were not the physical perpetrators but rather non-physical perpetrators who participated by ordering, instigating or aiding and abetting the perpetrators to commit such violence.


Chief Prosecutor Carla Del Ponte pursues evidence of sexual violence against persons of superior authority, military and political, who are "most responsible" for these offences, as well as pursuing notorious cases by mid-level perpetrators.


Thus, for instance, the indictment against former Bosnian Serb leader Radovan Karadzic includes allegations of sexual violence. The recently amended indictment against Dragan Nikolic, former commander of the Susica camp near Vlasenica, now contains thirty seven counts of sexual violence. He is accused of personal liability as well as responsibility as a superior in charge of others committing the offences.


The next trial to begin at the ICTY, scheduled for February, is the trial against Dragoljub Kunarac and Radomir Kovac - both charged with numerous rapes and acts of sexual violence tantamount to the sexual enslavement of women and girls during the 1992 attack and occupation of the Foca municipality.