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Review of the Sexual Violence Elements of the Judgments

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Review of the Sexual Violence Elements of the Judgments Front cover image: The Security Council unanimously adopting resolution 1888 on 30 September 2009 REVIEW OF THE SEXUAL VIOLENCE ELEMENTS OF THE JUDGMENTS OF THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA, THE INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA, AND THE SPECIAL COURT FOR SIERRA LEONE IN THE LIGHT OF SECURITY COUNCIL RESOLUTION 1820 SEXUAL VIOLENCE INCONFLICTS ARMED VIOLENCE SEXUAL The chief purpose of this report is to review sexual-violence elements of the judgments of the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR) and the UN-backed Special Court for Sierra Leone (SCSL) against the background of Security Council Resolution 1820 of 19 June 2008. Contact: Peacekeeping Best Practices Section (PBPS), Division for Policy, Evaluation and Training (DPET), Department of Peacekeeping Operations (DPKO). © United Nations 2010 All rights reserved Printed in the United States of America Language: English Sales #: E.10.VIII.1 Price USD: 22 ISBN: 978-92-1-137032-4 United Nations Department of Peacekeeping Operations REVIEW OF THE SEXUAL VIOLENCE ELEMENTS OF THE JUDGMENTS OF THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA, THE INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA, AND THE SPECIAL COURT FOR SIERRA LEONE IN THE LIGHT OF SECURITY COUNCIL RESOLUTION 1820 ACKNOWLEDGEMENTS This review and the accompanying Basic Toolkit of Key Readings and Sources of Potential Relevance to SCR 1820 and 1888 were prepared for the Division for Policy, Evaluation and Training (DPET) of the Department of Peacekeeping Operations (DPKO) by Mr Gabriel Oosthuizen, Executive Director of International Criminal Law Services (ICLS). DPKO is grateful to the Government of the Federal Republic of Germany for funding this review. DPKO is also grateful to the International Criminal Tribunal for the former Yugoslavia (ICTY), the Inter- national Criminal Tribunal for Rwanda (ICTR), and the Special Court for Sierra Leone (SCSL) for their contribu- tions to this review. In particular, the ICTY helped to identify some of the potentially relevant judgments at the ICTY and ICTR, and provided the author with electronic copies of judgments at the ICTY, ICTR and SCSL. A final draft version of this review has also been reviewed or otherwise considered by certain organs of or officers at each of the three courts. ICTY has also contributed a photograph to this publication. The Office of the High Commissioner for Human Rights (OHCHR) provided useful contact information, and was engaged from commission to publication of this document. The author is grateful to Kelly Dawn Askin, Michelle Jarvis, Bonita Meyersfeld, and Mariana Pena for their assistance in identifying potential sources for inclusion in the Toolkit. DPET/DPKO also contributed to the Toolkit. The final draft version of this review was completed before the adoption of Security Council resolution 1888 (2009), which is closely related to resolution 1820. This report is as relevant to the former as it is to the latter resolution. 2 DEPARTMENT OF PEACEKEEPING OPERATIONS FOREWORD The aim of this document is to identify the sexual violence elements of the jurisprudence of the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the Special Court for Sierra Leone (SCSL).1 It offers a comprehensive overview of the various ways that sexual violence in armed conflict can be interpreted and addressed under international law. It further provides easy reference to the conclusions that the ICTY, ICTR and SCSL reached with regard to sexual violence in armed conflict. It was prepared in light of Security Council Resolution 1820 (SCR 1820) which requests, inter alia, information on situations of armed conflict in which sexual violence has been widely or systematically employed against civilians, and analysis of the prevalence and trends of sexual violence in situations of armed conflict. The annexed Toolkit offers key readings, reference, and training materials on sexual violence, assembled to support the request in SCR 1820 for appropriate training programs for personnel deployed by the United Nations in the context of Security Council-mandated missions to help them better prevent, recognize and respond to sexual violence in conflict. The Study and Toolkit together are intended to serve as a resource for the United Nations System in its efforts to prevent and respond to sexual violence, including by combating impunity for sexual crimes. It is of par- ticular relevance to UN entities working on human rights and the rule of law, particularly human rights and justice components of peacekeeping missions. It will be an exceptional resource to the Team of Experts – mandated by SCR 1888 – to assist national authorities to strengthen the rule of law and address sexual violence in armed conflict, including by enhancing criminal accountability and responsiveness to victims. The analyses herein will also be of assistance to legal and judicial actors and civil society organizations dealing with cases of a similar nature at the national level. Unless otherwise indicated all data is up to date as of 9 March 2009. SEXUAL VIOLENCE IN ARMED CONFLICTS 3 EXECUTIVE SUMMARY The chief purpose of this report is to review sexual-violence elements of the judgments of the UN Interna- tional Criminal Tribunal for the former Yugoslavia (ICTY), the UN International Criminal Tribunal for Rwanda (ICTR) and the UN-backed Special Court for Sierra Leone (SCSL) against the background of UN Security Council (SC) resolution 1820 of 19 June 2008 (SCR 1820, or resolution). More specifically, the report seeks to “address SCR 1820 and its request for ‘information on situations of armed conflict in which sexual violence has been widely or systematically employed against civilians, and analysis of the prevalence and trends of sexual violence in situations of armed conflict” through the review of judgments of the three courts. The three courts were established to try those individuals ‘most’ responsible for the international crimes of genocide, crimes against humanity and war crimes committed during certain armed conflicts. These three general categories of atrocity crimes include sexual violence committed against civilians. For various rea- sons prosecutors cannot and do not prosecute all accused which evidence suggests have committed sexual violence against civilians. As a consequence of such factors, the judgments of the ICTY, ICTR and SCSL cannot be taken to be a comprehensive reflection of the sexual violence committed against civilians during the rel- evant armed conflicts. Judgments usually contain findings of fact and law of specific relevance to the case and law at hand, and which have been proven beyond a reasonable doubt by the prosecution. Extrapolating any conclusions from them in relation to the nature, scope, scale and trends of sexual violence committed against civilians in armed conflicts has to be done with great care. For example, the general category of crimes against human- ity has a legal element requiring that the alleged criminal conduct must have been part of a widespread or systematic attack directed against any civilian population. A conviction for rape or other sexual violence as crime against humanity does not, therefore, equate with a finding that sexual violence has been widely or systematically employed against civilians. Numerous judgments of completed cases at all three courts contain findings in relation to sexual violence committed against civilians in the relevant armed conflicts. Sexual violence form part of convictions of geno- cide, crimes against humanity and war crimes. Sexual violence against civilians also takes various forms and constitutes or is part of different crimes at the three courts. For example, rape and other forms of sexual vio- lence constitute or form part of the crimes of torture, enslavement, sexual slavery and persecution as crimes against humanity; of torture and outrages upon personal dignity as war crimes; and of serious bodily or mental harm as genocide. 4 DEPARTMENT OF PEACEKEEPING OPERATIONS Several at-trial cases, awaiting-trial cases, indictments of remaining fugitives, and trial judgments that are subject to appeal also contain charges or findings of sexual violence against civilians. In these judgments, the main victims of sexual violence were civilians. Women and girls were the chief tar- get. In ICTY and SCSL cases, men were targeted too. Many of the convictions concern sexual violence that formed part of widespread or systematic attacks against civilian populations. In many instances the sexual violence was particularly brutal, both physically and mentally. At the ICTY, a noticeable feature of the relevant judgments is that sexual violence against civilians formed part of and flowed from the so-called ‘ethnic cleansing’ of areas by parties to the conflict. Sexual violence SUMMARY EXECUTIVE centring on detention centres, including in situations amounting to sexual slavery of women and girls, com- prise a considerable part of the findings. However, as the judgments clearly show, sexual violence against civilians was also committed away from such detention centres. At the ICTR, a noticeable feature is that sexual violence against civilians, which mostly took the form of rape, formed part of the genocide commit- ted against the Tutsi. At the SCSL a noticeable feature is the abduction of civilian women and girls by and their forced
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