Tribunal Sets New Standard for Rape: Conflict played 'substantial part' in Foca rapes

In a written decision of 127 pages delivered on June 12, 2002, a five-judge appeals chamber upheld the convictions of Dragoljub Kunarac, Radomir Kovac, and Zoran Vukovic for violations of the laws or customs of war and crimes against humanity. Specifically, Kunarac was convicted on eleven counts of torture, rape and enslavement; Kovac was convicted on four counts of rape, enslavement, and outrages upon personal dignity; and Vukovic was convicted on four counts of torture and rape. The three men are Bosnian Serbs who, as soldiers, participated in the 'cleansing' of non-Serbs from the Foca area of Bosnia from April 1992 through February 1993. The cases against the men were based on their targeting civilian Muslim women over the course of their military activities in the region. Muslim women were systematically sequestered, tortured and raped by Bosnian Serb soldiers during the conflict.

'Crimes against humanity' and 'violations of the laws or customs of war' are separate legal categories, although they can sometimes be applied in the same situations and to the same acts. For a crime to be considered a violation of the laws or customs of war, it must have occurred in the context of an armed conflict and be closely related to that conflict. Kunarac, Kovac, and Vukovic had argued that this meant they couldn't be convicted unless their acts occurred in the exact location of fighting, and unless their acts could not have occurred without that fighting. Under this reasoning, the men couldn't be convicted for rape, since the targeted women and girls were often transported and detained in nearby areas that had not seen actual fighting, and because rape can occur even without the surrounding conflict. Implicitly, this argument was also based on the idea that the laws of war do not cover rape.

The appeals chamber rejected these arguments, holding that rape is clearly a criminal act under the laws of war, and that it is not removed from the reach of those laws just because it could have occurred without conflict. The court also held that the laws of war apply to the entire territory under control of the warring parties, not just those specific locations where combat occurs. Finally, it is not necessary to prove that armed conflict was the only possible cause of the crime. Rather, the court held that the existence of a conflict must have played a 'substantial part' in the decision to commit the crime, the ability to execute it, or the reasons for which it was committed. In this case, the facts that the convicted men were all combatants, their victims were all from the 'other side,' and their acts furthered the ultimate purpose of the general campaign, all could be used by the court to find that their acts were sufficiently related to the conflict.

To prove a crime against humanity, it is also necessary to show some link to an armed conflict according to the Tribunal statute. However, the appeals court affirmed that the 'crimes against humanity' category only requires proof that an armed conflict existed at the time and place the crime occurred. There does not have to be any cause-effect relationship between the crime and the conflict. A defendant must nonetheless know that his crime was part of a pattern of 'widespread or systematic' attacks directed against a civilian population. Kunarac, Kovac and Vukovic unsuccessfully challenged each element of this definition as applied to their acts.

The men also challenged the definitions of the specific crimes for which they were convicted. For example, they argued that the definition of rape should include the use of force or the threat of force, and that there must be 'continuous' or 'genuine' resistance on the part of the victim. This challenge arises from the particular circumstances of the case, which involved keeping women and girls in private apartments, military headquarters, and detention centers for up to six months for sexual and domestic use, during which time there were presumably occasions when intercourse was neither forced by the defendants nor resisted by the victims. The idea that a rape victim must resist under all circumstances has been discarded by most jurisdictions as impractical, if not absurd. In particular, the use or threat of force often removes any requirement that a victim show resistance. Moreover, the court noted that some jurisdictions do not require the use of a weapon or physical overpowering in order to prove force was used.

However, the court in this case has gone a step further by completely rejecting force as a necessary element of rape. Force remains clear evidence of non-consent, but rape can be proven even if there was no force at all. This powerful new standard for rape in international law focuses on ideas of 'sexual autonomy' and free will. This is to say that many conditions - not just the use of force - might make an act of sexual penetration non-consensual. The court held that conditions of detention and abuse such as those presented by this case are 'so coercive as to negate the possibility of consent,' whether or not there was force or explicit non-consent.

The court also affirmed that the rapes constituted torture. The definition of torture in customary international law involves the intentional infliction of severe pain or suffering for at least one of a list of impermissible purposes, such as punishment, discrimination, intimidation, or the obtaining of information. It is important to note that the suffering can be physical or mental, and can be inflicted by either an act or by an omission; i.e., a failure to act. The court held that the act of rape - by definition - implies severe pain or suffering. Because these rapes were intentional, and because they were used to intimidate and coerce the victims, they constitute torture.

As a result, one criminal act of rape can result in at least four charges and possible convictions, as has happened in Vukovic's case. In July 1992, Vukovic raped a fifteen-year-old Bosnian Muslim girl. Because this occurred in the context of armed conflict and as part of attacks on civilians, he has now been convicted of both rape and torture, each of which is a violation of the laws or customs of war as well as a crime against humanity. Although the Tribunal, like most domestic jurisdictions, does not permit a defendant to be tried or convicted twice for the same crime, the court noted that each of the charges against Vukovic involves a distinct element not contained in the others. For example, in a hypothetical trial, Vukovic could not have been convicted for sexual assault as well as rape, because that would involve punishment for both a serious offense and a lesser included offense. That is, rape includes sexual assault. In this case, the same act was both rape and torture, but because the crimes involve different elements, multiple convictions are permissible, and help to show the total scope of the crime. Similarly, Vukovic?s act was both a crime against humanity and a violation of the laws of war, because each of these provisions requires proof of facts not required by the other.

Vukovic will serve a sentence of 12 years, while Kunarac and Kovac will serve 28 and 20 years, respectively.