Landmark Cases

This trial of the former Bosnian Serb Democratic Party’s local board president from Kozarac, northwestern Bosnia and Herzegovina, made history in many ways. It was the first international war crimes trial since Nuremberg and Tokyo.

Just as importantly, it was the first international war crimes trial involving charges of sexual violence. The trial proved to the world that the nascent international criminal justice system could end impunity for sexual crimes and that punishing perpetrators was possible.

The Trial Chamber found how after taking over the area of Prijedor, in northwestern of BiH, Serb forces confined thousands of Muslims and Croats in camps. In a horrific incident in the Omarska Camp, one of the detainees was forced by uniformed men, including Duško Tadić, to bite off the testicles of another detainee. In May 1997, the Trial Chamber found Tadić guilty of cruel treatment (violation of the laws and customs of war) and inhumane acts (crime against humanity) for the part he played in this and other incidents.

Two years later, on appeal, Tadić was additionally sentenced for grave breaches of the 1949 Geneva conventions: inhumane treatment and wilfully causing great suffering or serious injury to the body or health. In the Judgement, the Appeals Chamber set out that “Through his presence, Duško Tadić aided and encouraged the group of men actively taking part in the assault. Of particular concern here is the cruelty and humiliation inflicted on the victim and the other detainees”. In January 2000 Tadić was sentenced to 20 years’ imprisonment.

Incidents of sexual violence against men were examined in other cases before the Tribunal, including among others Češić, Mucić et al., Todorović and Simić.

The trial of four former members of Bosnian armed forces set a milestone in international justice by recognising rape as a form of torture, and as such both a grave breach of the Geneva Conventions and a violation of the laws and customs of war.

Three out of the four accused were charged with sexual violence against Bosnian Serb civilians kept in a prison camp in Čelebići in central BiH.

The Trial Chamber considered a number of sexual violence charges during the trial. Esad Landžo, a camp guard, forced two brothers to commit fellatio on each other in full view of other detainees, and placed a burning fuse around their genitals. He also placed a burning fuse around the genitals of another male detainee and forced him to run between rows of prisoners.

Significantly, the ICTY also held Landžo’s superior responsible for these acts. Zdravko Mucić, the camp commander, was found guilty of these and other crimes committed by his subordinates. The crimes were qualified as grave breaches and violations of the laws and customs of war.

A legal precedent was set in the adjudication of the rape charges committed by the deputy camp commander, Hazim Delić. Rape was qualified as a form of torture – the first such judgement by an international criminal tribunal.

Delić raped two women detained in the camp, Grozdana Ćećez and Milojka Antić, during interrogations. The judges ruled that the purpose of the rapes was to obtain information, punish the women for their inability to provide information and to intimidate and coerce them. The Trial Chamber also found that the violence suffered by the two women had a discriminatory purpose - it was inflicted on them because they were women.

When passing this judgement in 1998, the Trial Chamber considered "the rape of any person to be a despicable act which strikes at the very core of human dignity and physical integrity.” The judges held that acts of rape may constitute torture under customary international law.

The ICTY Appeals Chamber upheld the findings of the Trial Chamber and sentenced Hazim Delić to 18, Zdravko Mucić to 9 and Esad Landžo to 15 years of imprisonment. A fourth accused, Zejnil Delalić, was acquitted on all counts due to lack of evidence.

The first case at the ICTY to concentrate entirely on charges of sexual violence was that against Anto Furundžija. The trial focused on the multiple rapes of a Bosnian Muslim woman committed during interrogations led by Furundžija who was at the time the commander of the Jokers, a special unit of the Croatian Defence Council (HVO) in BiH.

It was not Furundžija personally, but his subordinate who raped the woman in front of a laughing audience of other soldiers. Nevertheless, as the unit’s commander, Furundžija was found guilty as a co-perpetrator and as an aider and abettor. The conviction was upheld on appeal and Furundžija was sentenced to 10 years’ imprisonment.

Presenting its legal considerations in the judgement, the Trial Chamber made important remarks on the qualification of rape in the context of international crimes. In the Tribunal’s Statute, the only explicit reference to rape is as one of the crimes constituting crimes against humanity. The Trial Chamber widened that scope and stated that rape may also be prosecuted as a grave breach of the Geneva Conventions and as a violation of the laws and customs of war.

Importantly, the Tribunal’s judges also confirmed that rape may be used as a tool of genocide. “Rape may also amount to (…) an act of genocide, if the requisite elements are met, and may be prosecuted accordingly.” A landmark precedent was set in 1998 when ICTY’s sister tribunal the ICTR rendered a judgement in Akayesu case in which it was concluded that rape constitutes genocide.

The second ICTY trial to deal entirely with charges of sexual violence made another significant contribution to international criminal law. The judgement broadened the acts that constitute enslavement as a crime against humanity to include sexual enslavement and determined the relationship of gender crimes to customary law.

The three accused Bosnian Serb army officers Dragoljub Kunarac, Zoran Vuković and Radomir Kovač, played a prominent role in organising and maintaining the system of infamous rape camps in the eastern Bosnian town of Foča.

The campaign of sexual abuse started after the Bosnian Serb takeover of Foča, in the spring of 1992. Bosnian Serbs gathered Muslim women in detention centres around the town where they were raped by Serb soldiers. Many women were then taken to apartments and hotels run as brothels for Serb soldiers. The judges heard the testimonies of over 20 women regarding repeated acts of rape, gang rape and other kinds of sexual assault and intimidation.

The women also described the way in which they were obliged to perform household chores, were forced to comply with all the demands of their captors, were unable to move freely and were bought and sold like commodities. In short, they lived in conditions of enslavement.

There was no doubt in the Judges’ minds that the enslavement was sexual in nature. This was a significant ruling, because international law had previously associated enslavement with forced labour and servitude. The definition of the crime was therefore widened to include sexual servitude.

All three accused were also found guilty of rape as a crime against humanity. This was the first such conviction in the ICTY’s history, closely following on the historical precedent set by the ICTR’s judgement in the Akayesu case in 1998.

In the context of a widespread and systematic attack on civilians, rape was used to implement a strategy of “expulsion through terror,”, the ultimate goal of which was to drive the Muslims out of the region of Foča. Rapes became the way in which “the Serbs could assert their superiority and victory over the Muslims”. “While raping FWS-183, the accused Dragoljub Kunarac told her that she should enjoy being ‘fucked by a Serb’. After he and another soldier had finished, Dragoljub Kunarac laughed at her and added that she would now carry a Serb baby.”

The convictions were upheld by the Appeals Chamber in June 2002. Kunarac, Kovač and Vuković received 28, 20, and 12 years’ imprisonment respectively.

Whereas the Kunarac et al. judgement clearly defined rape as a tool of war, the case of Radislav Krstić established a link between rape and ethnic cleansing, which, in the context of Srebrenica crimes in July 1995, was closely associated with genocide.

Krstić was a General Major in the Bosnian Serb Army and commander of the Drina Corps during the operation which resulted in the execution of more than seven thousand Bosnian Muslim boys and men from Srebrenica in July 1995.

As Srebrenica fell under Bosnian Serb army control, about 20-30,000 of its Muslim residents, mostly women, children and the elderly, fled to the nearby village of Potočari. Several thousand sought protection inside the UN military camp. Serb soldiers entered the compound, mingled in the crowd and threatened, beat and killed people. The soldiers also committed many acts of rape.

The Trial Chamber found Krstić responsible for the crimes committed in Potočari, including the rapes, which were deemed as “natural and foreseeable consequences of the ethnic cleansing campaign”. The Judges noted that, although “ethnic cleansing” was not a legal term, it had been used in various legal analyses before. The Trial Chamber concluded that there were “obvious similarities between a genocidal policy and the policy commonly known as ''ethnic cleansing”., The rapes in Potočari did not form part of Krstić’s conviction for aiding and abetting genocide, as the events in Potočari were a prelude to the subsequent genocide.

In 2004 the Appeals Chamber upheld the sexual violence convictions. Krstić was sentenced to 35 years’ imprisonment.