The essay deals with the definition of rape at international level as adopted by the International Criminal Tribunal for the former Yugoslavia in the Kunarac, Kovač and Vuković case. The ICTY judgment in the so-called "rape camps" case has been subject to constant discussions, applauded by some and criticized by others, both from a legal and purely human perspective.
The reason why the case in hand attracts so much attention lies not only in the fact that it touches such a delicate topic as mass rapes in wartime. What makes it truly noteworthy, though, is the pioneering character it has as to the manner of dealing with that matter. The present paper strives to outline namely those features of the trial chamber’s decision, based on which it has been defined by many as a landmark one.
Table of Contents
1. Introduction
1.1. Purpose, methodology and structure
1.2. Rape throughout the years – historical background
2. Prosecutor v. Dragoljub Kunarac, Radomir Kovač and Zoran Vuković
2.1. Facts of the case
2.2. Muslim perception of rape
2.3. Convictions and sentences
3. Definition of rape
3.1. Actus reus
3.2 Mens rea
4. Criticism towards the non-consent approach: the issue of the defence of “mistaken belief in consent”
5. Conclusion
Research Objectives and Themes
The primary objective of this paper is to conduct a critical analysis of the legal definition of rape as established by the International Criminal Tribunal for the former Yugoslavia (ICTY) in the landmark Kunarac, Kovač and Vuković case, evaluating its contribution to international humanitarian law.
- The evolution of rape from an anticipated consequence of war to a recognized instrument of terror and crime against humanity.
- The specific legal elements constituting the actus reus and mens rea of rape within international jurisprudence.
- The transition from a force-based approach to a non-consent-based approach in defining rape under international law.
- The legal implications and controversies surrounding the defense of "mistaken belief in consent" in cases of mass sexual coercion.
Excerpt from the Book
3.1. Actus reus
From the analysis made by the court, thus, a conclusion could be drawn that there are two basic components of the actus reus of the crime of rape. Whereas the first one – a physical invasion of a sexual nature, is indisputably accepted as such, the second one raises some controversies. This component is, according to some authorities, the presence of coercive circumstances or, according to others, the absence of consent.35
Physical invasion of a sexual nature
Although there is general agreement as to the conduct element of the crime of rape, it still triggers disputes among some theoreticians and practitioners as to what exactly meant by ‘physical invasion of a sexual nature’. There are three main approaches in this regard. The first one is taken by the ICTR in the first case to identify the elements of rape, namely Akayesu case.36 Here the rape is considered as “a form of aggression” which “central element... cannot be captured in a mechanical description of objects and body parts”.37 The second approach is taken by the ICTY in the Furundzija case.38 Clearly concerned about a possible breach of the nullum crimen sine lega principle,39 it elaborated a bit further otherwise the too general scope of the conduct element given in Akayesu case, by specifying it as ‘…the sexual penetration, however slight: (a) of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; or (b) of the mouth of the victim by the penis of the perpetrator’.40 The third approach was taken by the ICC in through adopting of its Elements of Crimes41 and falls in between the two definitions hitherto discussed.42
As far as there is no coherent definition, the court possesses margin of appreciation which of them to be applied to a particular case. In the Kunarac et al. case it is Furundzija approach that eventually was adopted by the Trial Chamber II.
Summary of Chapters
1. Introduction: This chapter introduces the historical and legal significance of the Kunarac et al. case and outlines the methodological approach to analyzing the Tribunal's definition of rape.
2. Prosecutor v. Dragoljub Kunarac, Radomir Kovač and Zoran Vuković: This chapter details the factual background of the crimes in Foča, the socio-cultural impact on the victims, and the final judicial outcome regarding convictions and sentencing.
3. Definition of rape: This section examines the two essential components of rape, actus reus and mens rea, as defined and applied by the ICTY in its judgment.
4. Criticism towards the non-consent approach: the issue of the defence of “mistaken belief in consent”: This chapter analyzes the academic and legal critique of the non-consent approach, specifically focusing on the problematic defense of mistaken belief in consent.
5. Conclusion: The conclusion summarizes the broader impact of the Tribunal's jurisprudence and emphasizes the necessity of legal discourse in refining international law.
Keywords
International Criminal Tribunal, ICTY, Kunarac case, rape, international humanitarian law, war crimes, crimes against humanity, actus reus, mens rea, non-consent approach, mistaken belief, sexual violence, ethnic cleansing, Foča, jurisprudence.
Frequently Asked Questions
What is the primary focus of this paper?
This paper focuses on the legal definition of rape established by the International Criminal Tribunal for the former Yugoslavia (ICTY) in the Kunarac, Kovač and Vuković case.
What are the central themes of the work?
The core themes include the judicial interpretation of rape as a crime against humanity, the evolution of its definition under international law, and the challenges of balancing victim rights with fair trial standards.
What is the core research objective?
The objective is to evaluate the contribution of the Kunarac judgment to international legal theory and practice, particularly concerning the shift from force-based to consent-based definitions.
Which scientific methodology is employed?
The paper utilizes legal doctrinal analysis, reviewing case law, tribunal statutes, and scholarly literature to examine how the court defined the elements of the crime of rape.
What does the main body of the work cover?
The main body covers the facts of the Foča case, the interpretation of actus reus and mens rea, and a critical discussion of the "mistaken belief in consent" defense.
Which keywords best characterize the study?
Key terms include ICTY, war crimes, rape, international law, non-consent, and jurisprudence.
Why was the Kunarac case considered a "landmark" decision?
It was the first ICTY case to successfully convict individuals for rape as a crime against humanity and provided a foundational elaboration of the definition of rape in international law.
How does the paper address the defense of "mistaken belief in consent"?
The paper highlights how the Court's requirement for knowledge of the lack of consent inadvertently opened the door for this defense, which the Court subsequently dismissed in the specific context of the captive victims.
- Arbeit zitieren
- Velina Valcheva (Autor:in), 2016, Defining rape at an international level. The contribution of the Kunarac, Kovač and Vuković case, München, GRIN Verlag, https://www.grin.com/document/430899
