Defining rape at an international level. The contribution of the Kunarac, Kovač and Vuković case

Inhaltsverzeichnis

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

6. Bibliography

1. Introduction

“Historic Trial Makes Rape War Crime” ^[1]

“Bosnian Serbs Convicted of Rape” ^[2]

“3 Serbs Convicted in Wartime Rapes” ^[3]

“Bosnian Serbs Jailed for Rape and Sexual Slavery” ^[4]

…

These are just a few of the many press releases that emerged in leading international media fifteen years ago when the International Tribunal for the former Yugoslavia^[5] delivered its Judgment in the Kunarac, Kovač and Vuković case^[6]. Since then, this decision 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.

1.1. Purpose, methodology and structure

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. With this end in view, a brief historical background of the crime of rape shall be provided first, followed by a summary of the main facts set out in the case. Then, the focus shifts on the contributions that the judgment at stake made to the international legal theory and practice laying down its perception of rape not merely as a crime, but as a crime against humanity, a war crime, and an instrument of terror. Eventually, all this shall lead us to the core of the present analysis, namely the definition of the crime of rape at international level as adopted by the International Criminal Tribunal for the former Yugoslavia in the so-called Rape camps case.

1.2. Rape throughout the years – historical background

It is a common knowledge that rape has always been an integral part of the wars waged all over the world. There is almost no paper, analysis or other written work devoted to the topic in which this frustrating fact not to be mentioned. Throughout the years, however, the perception of rape has been evolving from a merely anticipated consequence of each armed conflict into an instrument, method, and tactic of warfare. Whereas for the victims of sexual assault there is no difference between the two viewpoints, legally speaking, this change in attitude towards rape is crucial. Because while viewing rape as an aftermath of the war could only invoke feelings of inevitability and hopelessness, the targeted use of rape can be evaluated, prosecuted, and eventually punished.^[7] Put in another way, without its recognition as a means of warfare, addressing rape as a crime under international law would hardly ever be possible.

However, it was not until the end of the Second World War that the first steps towards condemnation of rape at international level were made through the prohibition of rape and any form of indecent assault on women by the Fourth Geneva Convention in 1949 and its First and Second Additional Protocols^[8] in 1977. Yet, neglect and non-prosecution of mass rape continue until the 1990’s when it was explicitly proclaimed as a punishable act within the Statutes of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR).^[9] However, there are still some authors who challenge the status of rape as an independent crime at international level. They claim that beyond being committed within the framework of other international crimes (e.g. torture, genocide, the grave breaches provisions of the Geneva Conventions, or crimes against humanity), rape cannot be regarded on its own to be such a crime.^[10] Nonetheless, the Statutes of the ICTY and the ICTR, together with the Statute of the International Criminal Court (ICC)^[11] are these international instruments that represent the foundation upon which this crime is punishable.^[12]

Admittedly, the texts related to the prohibition of rape would remain on paper only if there was no subsequent practical implementation. Since the establishment of the International Tribunals for Former Yugoslavia and Rwanda in 1993 and 1994 respectively, a number of cases pertaining to sexual violence advanced the practice of its prosecution as an international crime. Although the following paragraphs focus on one particular case, other cases shall be discussed by way of comparison as well. As evident from the title and as already mentioned in the introduction, a point of departure for the present analysis shall be the judgment of the ICTY’s Trial Chamber II in the Kunarac, Kovač and Vuković case.

2. Prosecutor v. Dragoljub Kunarac, Radomir Kovač and Zoran Vuković

As mentioned above, the case at stake has been frequently defined to be a cornerstone of the subsequent practice not only of the ICTY but of the practice of other international criminal courts and tribunals set up on an ad hoc basis such as ICTR, SCSL^[13] and ECCC^[14]. More precisely, it is pointed out as the judgment providing:

- the first ICTY conviction of rape as a crime against humanity;
- the first conviction of enslavement as a crime against humanity on the basis of sexual acts;
- the first occasion that international tribunal explicitly ruled that the systematic rape of women during an armed conflict constitutes a war crime;^[15]
- a further elaborated definition of rape under International law;

The present paper focuses on the last point only, which shall be discussed more thoroughly below. First, however, a brief summary of the facts of the case shall be made.

2.1. Facts of the case

The case^[16] deals with events occurred in the city and municipality of Foča , Bosnia and Herzegovina as part of the international armed conflict in the former Yugoslavia started in 1990’s. From early April 1992 to approximately the middle of 1993 Foča became a scene of a massive campaign by the Serbs forces aiming, above all, to “cleanse” the area of its Muslim inhabitants. It could be argued in this respect that the campaign was a successful one because, as an aftermath of it, there are hardly any Muslims present in this area today. Moreover, even the town’s name was “cleansed” after Foča was eventually renamed Srbinje which means “place of the Serbs”.^[17] To achieve this, Muslims were brought to collection points from where they were taken to different buildings in Foča and in the villages surrounding the town. Men were separated from the women and children, detained for a long time without justification and systematically subjected to various forms of abuses and even killed. Muslim women and young girls were taken away on a regular basis to other locations to be raped. Some of them were detained for several months and were not only constantly raped, but taken as the ‘property’ and made to do housework, cleaning and cooking.^[18] Others were lent, rented out or even sold to other soldiers. One of them, a twelve-year-old girl, disappeared without a trace after being sold.^[19]

2.2. Muslim perception of rape

It could be claimed that central issue in the Kunarac et al. case is the use of rape as an ‘instrument of terror’^[20] by means of which the Muslim population to be forced to leave the area. The coercive nature of the act of rape and the physical and psychological trauma it causes to all the victims is irrefutable and irrespective of age, gender,^[21] religious and cultural affiliation. Yet there are some circumstances that could impair the consequences of the sexual violence even more. Thus, in the case at hand, the negative impact that such an experience has on the victim's mental and emotional stability is further aggravated by the fact of the abused women’s ethnicity. In the Muslim culture, raped women are treated as unmarriageable, thus, becoming a target of societal ostracism.^[22] The reason is that Muslims attach a profound stigma to rape^[23] which results in an even deeper-seated feeling of shame.^[24]

2.3. Convictions and sentences

Dragoljub Kunarac, Radomir Kovač and Zoran Vuković are some of the actors in the hostilities in Foča who eventually were brought to court. After three amendments and one redaction of the initial indictment,^[25] the three accused were charged with various offences which constitute either crimes against humanity or violations of the laws or customs of war. Eleven months after the actual commencement of the trial on 20 March 2000 and after more than sixty witnesses being heard, the ICTY Chamber found them guilty on the following charges:

- Kunarac was found guilty both on the basis of individual^[26] and superior^[27] criminal responsibility under particular counts as hold in the indictment which are related to:
- Enslavement, torture and rape as crimes against humanity.^[28]
- Torture and rape as violations of the laws or customs of war.^[29]
- Kovač was found guilty on the basis of individual criminal responsibility under particular counts as hold in the indictment which are related to:
- Rape and outrages upon personal dignity as violations of the laws or customs of war.^[30]
- Enslavement and rape as crimes against humanity.^[31]
- Vuković was found guilty on the basis of individual criminal responsibility under particular counts as hold in the indictment which are related to:
- Torture and rape as violations of the laws or customs of war^[32] and as crimes against humanity.^[33]

The three accused were sentenced to 28, 20, and 12 years’ imprisonment respectively. Later on, following an appeal submitted by them, the judgment, and the sentences were affirmed by the Appeals Chamber of the ICTY.

3. Definition of rape

Being a central issue of consideration in the present paper and moreover, being the fundament of the charges in the discussed case, more profound analysis of the elements constituting the crime of rape shall be provided.

There is no generally agreed definition of the crime of rape under International law. That is why in dealing with the Kunarac et al. case, the Trial Chamber II of ICTY rely not only on a review of the rape-related practice established at international level but on a thorough examination of the national legislation of a large number of states as well.^[34]

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 Crimes^[41] 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.

- Force and coercion vs. lack of consent

As mentioned above, it is the second element of the crime of rape which faces much more inconsistencies in the way of its interpretation. According to Furundzija Judgment, it consists in ‘coercion or force or threat of force against the victim or a third person.^[43] ’ While the Trial Chamber II of Kunarac et al. agreed with the first element of the actus reus of rape as held in Furundzija, it explicitly opposed to the formulation of the second one as provided for in it. The judgment of Foča case argued that by focusing on coercion or force or threat of force, the definition of rape was more narrowly stated than is required by international law. In the view of the Chamber, there are factors other than force, which would render an act of sexual penetration non-consensual or non-voluntary on the part of the victim. For instance the victim being put in a state of inability to resist, because of a physical or mental incapacity, or induced into the act by surprise or misrepresentation.^[44] Thus, the appropriate manner in which the conduct element is to be understood is as a lack of genuine and voluntarily given consent,^[45] regardless of the presence or absence of use of force.

3.2 Mens rea

Besides the objective element consisting in culpability in the actions, the principle ‘actus non facit reum nisi mens sit rea’ ^[46] further requires a a subjective one - a blameworthy inten. Thus only, the definition of the crime of rape would be completed. The mens rea as held in the Kunarac et al. case encompasses ‘the intention to effect this sexual penetration and the knowledge that it occurs without the consent of the victim’.^[47]

This interpretation of the crime rape made by the Trial Chamber II of the ICTY was later challenged before the Appeal Trial Chamber because, according to appellants, in addition to penetration, two more elements are required: force or threat of force and the victim’s “continuous” or “genuine” resistance.^[48] Subsequently, these grounds were rejected by the Tribunal as ‘wrong on the law and absurd on the facts.’ The Appeal Chamber assumed that the use of force or the threat of force while providing a clear evidence of non-consent, nevertheless it is not an element of rape per se and respectively confirmed the definition as provided for in the judgment of the Trial Chamber II.^[49]

[...]

^[1] CNN World, 22/02/2001: http://edition.cnn.com/2001/WORLD/europe/02/22/hague.trial.04/

^[2] BBC News, 22/02/2001: http://news.bbc.co.uk/2/hi/europe/1184313.stm?storyLink=%23

^[3] The New York Times, 23/02/2001: http://www.nytimes.com/2001/02/23/world/3-serbs-convicted-in-wartime-rapes.html

^[4] The Telegraph, 23/02/2001: http://www.telegraph.co.uk/news/worldnews/1323877/Bosnian-Serbs-jailed-for-rape-and-sexual-slavery.html

^[5] International Criminal Tribunal for the Former Yugoslavia - established pursuant to Security Council Resolution S/Res/827(1993), 25 May 1993, (hereafter referred to as ICTY or the Tribunal).

^[6] Prosecutor v. Dragoljub Kunarac, Radomir Kovač and Zoran Vuković (Trial Judgment), IT-96-23-T & IT-96-23/1-T, International Criminal Tribunal for the former Yugoslavia (ICTY), 22 February 2001 (hereafter referred to as Kunarac et al. case, Foča case or Rape camp case).

^[7] Lindsey Crider, Samford University ‘Rape as a War Crime and Crime against Humanity: The Effect of Rape in Bosnia - Herzegovina and Rwanda’ International Law Alabama Political Science Association Conference held at Auburn University, March 30 - 31, 2012, p. 31.

^[8] International Committee of the Red Cross (ICRC), Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS 3 (See article 76(1))and Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977, 1125 UNTS 609 (See article 4(2)).

^[9] International Criminal Tribunal for Rwanda - established pursuant to Security Council Resolution S/Res/955(1994), 8 November 1994.

^[10] De Vito, D. (2011). Rape, torture and genocide: Some theoretical implications (Laws and legislation; Laws and legislation series). Hauppauge, N.Y.: Nova Science Publishers, p.45.

^[11] UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998.

^[12] Gagro S.F. (2010). The crime of rape in the ICTY's and the ICTR's CASE-law. Zbornik Pravnog Fakulteta U Zagrebu, 60 (6), 1309-1334, p. 1313.

^[13] The Special Court for Sierra Leone.

^[14] Extraordinary Chambers in the Courts of Cambodia.

^[15] Maravilla, C. S. (2001). Rape as a war crime: The implications of the International Criminal Tribunal for the Former Yugoslavia's decision in Prosecutor v. Kunarac, Kovac, & Vukovic on international humanitarian law. Florida Journal Of International Law, Vol. 13, No. 3, P. 321-341, p.322.

^[16] This section follows the Summary of Judgment of Trial Chamber II in the Kunarac, Kovač and Vuković case, (22 February 2001). The summary is available at: http://www.icty.org/x/cases/kunarac/tjug/en/010222_Kunarac_Kovac_Vukovic_summary_en.pdf. Where another source is used, appropriate reference shall be made.

^[17] Note that in 2004, in Case No. U 44/01,1 the Constitutional Court of Bosnia and Herzegovina reverted the name into Foča, finding that the law by which the National Assembly of the Republika Srpska (RS) had renamed various cities and towns in the territory of RS is unconstitutional. (Source: Feldman, D. (2005). Renaming cities in Bosnia and Herzegovina. International Journal Of Constitutional Law, 3 (4), 649-662, p. 649, 650 and 652.)

^[18] Buss, D. (2002). Prosecuting Mass Rape: Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic. Feminist Legal Studies, 10(1), 91-99, p. 93.

^[19] “The 12-year-old was taken by one “Jasko Gazdic” never to be seen again. We presume she is dead but we have no idea where she is. She was never heard from by her mother, family or anybody else. She was only 12 years old.” These words are part of publication in the blog of Peter Mitford-Burgess - an investigator with the Office of the Prosecutor at the ICTY who was involved with the Foča investigations for some time. Available at: http://srebrenica-genocide.blogspot.nl/2011/05/systematic-rapes-of-bosniak-women-and.html

^[20] Kunarac et al., ICTY T. Ch. II, 22 February 2001, Summary of the Judgment, p.2: ‘…[t] the rapes were used by members of the Bosnian Serb armed forces as an instrument of terror. An instrument they were given free rein to apply whenever and against whomsoever they wished.’

^[21] See Sivakumaran, S. (2005); ‘Male/Male Rape and the "Taint" of Homosexuality’. Human Rights Quarterly, 27 (4), 1274–1306, (regarding the stigmatization of the male rape victims as homosexuals).

^[22] Askin, K. D. (1997). War crimes against women: Prosecution in international war crimes tribunals. The Hague etc.: Martinujhoff, p. 267, 268.

^[23] Gagro S.F., op. cit., p. 1310.

^[24] Nicola Henry, (2010) The Impossibility of Bearing Witness: Wartime Rape and the Promise of Justice. Violence Against Women, 16 (10), 1098-1119, p. 1114.

^[25] Originally, Kunarac, Kovač and Vuković were co-accused together with five other Serbs (Gagović, Zelenović, Janković, Janjić and Stanković). Ultimately the charges were split into two cases: IT-96-23-T and IT-96-23/1-T. The three amendments and the redaction are available at: http://www.icty.org/case/kunarac/4

^[26] UN Security Council, Statute of the International Criminal Tribunal for the Former Yugoslavia (as amended on 17 May 2002), 25 May 1993 (hereafter referred to as ICTY Statute), Art. 7(1).

^[27] Ibid., Art. 7(3).

^[28] Ibid., Art. 5 (c)(f)(g).

^[29] Ibid., Art. 3.

^[30] Ibid., Art.3.

^[31] Ibid., Art. 5(c)(g).

^[32] Ibid., Art. 3.

^[33] Ibid., Art. 5(f)(g).

^[34] See Kunarac et al., ICTY T. Ch. II, 22 February 2001, paras. 436-459.

^[35] Cryer, R. (2014) An introduction to international criminal law and procedure (Third edition.). Cambridge, United Kingdom: Cambridge University Press, p. 252.

^[36] The Prosecutor v. Jean-Paul Akayesu (Trial Judgment), ICTR-96-4-T, International Criminal Tribunal for Rwanda (ICTR), 2 September 1998.

^[37] Ibid., paras. 597-598.

^[38] Prosecutor v. Anto Furundzija (Trial Judgment), IT-95-17/1-T, International Criminal Tribunal for the former Yugoslavia (ICTY), 10 December 1998.

^[39] Schabas, W. (2006). The UN international criminal tribunals: The former Yugoslavia, Rwanda, and Sierra Leone. Cambridge, UK: Cambridge University Press, p. 209.

^[40] Prosecutor v. Anto Furundzija 185 (i).

^[41] International Criminal Court (ICC), Elements of Crimes, 2011, ISBN No. 92-9227-232-2. Art. 7(1)(g)-1, Element 1: ‘The perpetrator invaded the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body.’

^[42] Cryer, R., op.cit., p. 252.

^[43] Prosecutor v. Anto Furundzija, para. 185(ii).

^[44] Kunarac et al., ICTY T. Ch. II, 22 February 2001, para. 438.

^[45] Ibid ., para. 438-460.

^[46] An act is not necessarily a guilty act unless the accused has the necessary state of mind required for that offence http://www.oxfordreference.com/view/10.1093/oi/authority.20110803095349253

^[47] Kunarac et al., ICTY T. Ch. II, 22 February 2001, para. 460.

^[48] Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic (Appeal Judgment), IT-96-23 & IT-96-23/1-A, International Criminal Tribunal for the former Yugoslavia (ICTY), 12 June 2002, para. 125.

^[49] Ibid. paras. 127-132.