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Investigating Wartime Sexual Violence

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Investigating Wartime Sexual Violence Investigating Wartime Sexual Violence A training course for police investigators in Bosnia and Herzegovina Course Objectives and Acknowledgements The goal of this course is to provide police investigators with the necessary specialized knowledge and skills to effectively investigate conflict-related sexual violence crimes in Bosnia and Herzegovina. A combination of reading material, presentations, and practical exercises aims to impart a holistic understanding of the legal framework applicable to these crimes and to explain how to plan and implement investigations that maximize the quality of evidence while accommodating in the best possible way the needs of victims and witnesses. The content of the training modules has been developed by leading international and local experts on conflict- related sexual violence under the behest of the Institute for International Criminal Investigations and the OSCE Mission to Bosnia and Herzegovina, in close collaboration with the Department for Police Education - Police Academy of MoI of Republic Srpska and the Police Academy of MoI of Federation of Bosnia and Herzegovina. The development of this course was funded by the government of the United Kingdom. The OSCE Mission to Bosnia and Herzegovina would like to acknowledge the Department for Police Education - Police Academy of MoI of Republic of Srpska and Police Academy of MoI of Federation of Bosnia and Herzegovina for their valued partnership and commitment to continuous professional development. MODULE 1: International Criminal Law MODULE 2: Legal Framework in Bosnia and Herzegovina MODULE 3: Wartime Sexual Violence and Investigation Planning MODULE 4: Collection of Evidence and Forensic Aids to Sexual Violence Investigations MODULE 5: Witness Trauma and Psychosocial Support MODULE 6: Witness Management, Safety and Protection MODULE 7: Interviewing Skills Module 1 Module 1 MODUL 1: Međunarodno krivično pravo MODUL 2: Pravni okvir u Bosni i Hercegovini MODUL 3: Seksualno nasilje u ratu kao osnov u planiranju istrage MODUL 4: Prikupljanje dokaza i forenzika u istragama seksualnog nasilja u ratu MODULEMODUL 5:1: Trauma svjedoka i psiho-socijalna podrška MODUL 6: Postupanje sa svjedocima, International bezbjednost Criminal i zaštita Law svjedoka MODUL 7: Vještine vođenja informativnih razgovora International Criminal Law 1 MODULE 1 Crimes of Sexual and Gender-Based Violence under International Law ..................... 3 Introduction ............................................................................................................. 3 International Criminal Law ........................................................................................ 4 Genocide .................................................................................................................. 4 Crimes Against Humanity ......................................................................................... 5 Elements of Crimes Against Humanity under International Law ................................6 War Crimes ............................................................................................................... 6 Essential Principles of International Humanitarian Law ............................................6 Violations of International Humanitarian Law ........................................................... 7 Elements Common to all War Crimes ........................................................................ 8 Individual War Crimes ............................................................................................... 9 The Prohibition of Conflict-Related Sexual Violence Under International Law ...........9 International Humanitarian Law ...............................................................................9 International Criminal Law ...................................................................................... 10 Special Evidentiary and Procedural Rules for Sexual Violence Cases.........................11 International Jurisprudence on Rape ....................................................................... 12 International Jurisprudence on Enslavement and Sexual Slavery ............................ 15 International Jurisprudence on Torture and Other Acts of Sexual Violence .............. 16 International Jurisprudence on Rape and Sexual Violence as the Crime Against Humanity of Persecution ....................................................... 18 Modes of Liability Commission and Participation .................................................... 20 Forms of Individual Criminal Responsibility ............................................................. 20 Module 1 CRIMES OF SEXUAL AND GENDER-BASED VIOLENCE UNDER INTERNATIONAL LAW1 INTRODUCTION The concept of a war crime is broad and encompasses many different acts committed during an armed conflict. It is synonymous in many people’s minds with ethnic cleansing, mass killings, sexual violence, recruitment of child soldiers, deliberately targeting civilian objects such as cities and towns, and similar atrocities. It is important at the outset to understand the terminology associated with war crimes. Among the equivalent and interchangeable expressions – the “Laws of War”, the “Law of Armed Conflict”, and “International Humanitarian Law”, the first is the oldest. War crimes come under the general umbrella of International Humanitarian Law (IHL), and may be defined as the branch of international law limiting the use of violence in armed conflicts. The fundamental aim of IHL is to establish limits to the means and methods of armed conflict, and to protect non-combatants, whether they are wounded, sick or captured soldiers, or civilians. War crimes may be defined as a serious violation of the rules or principles of IHL – for which persons may be held individually responsible. Individual criminal responsibility is a fundamental principle of IHL. It is the reason we need to conduct international criminal investigations i.e. to establish the facts and gather relevant evidence in order to prosecute perpetrators. The most effective way to enforce IHL is through national courts or tribunals. Unfortunately, such mechanisms are not always functioning or in place, especially in conflict and post- conflict environments. For this reason, the international community has on occasion acted to create machinery to repress breaches of IHL. Two leading examples are the Nuremberg War Crimes Trials (under which the Nazi leadership was tried), and the International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR). In more recent years, the adoption of the Rome Statute and the establishment of the International Criminal Court (ICC), specifically tasked with adjudicating on some breaches of IHL, mark a significant advancement in the implementation process. The challenge is to investigate and prosecute these crimes. This is where the role of international criminal investigators is crucial, as ultimately the decision to prosecute and the outcome of the process will be dependent on the evidence gathered. 1 The content of this module’s narrative is drawn from two recent publications by the OSCE Mission to Bosnia-Herzegovina: the Investigation Manual for War Crimes, Crimes Against Humanity and Genocide in Bosnia and Herzegovina and the report Combating Impunity for Conflict-Related Sexual Violence in Bosnia and Herzegovina: Progress and Challenges. The material has been modified for the purpose of this module. International Criminal Law 3 Module 1 INTERNATIONAL CRIMINAL LAW The term international criminal law is used to describe certain international crimes. These are breaches of international rules that entail individual criminal responsibility. While most agree that a recognizable body of international criminal law exists, it is difficult to define as it may include a myriad of acts under various treaties or customary law. It includes war crimes, crimes against humanity, genocide and aggression. Unlike war crimes, genocide and crimes against humanity do not need to be committed in the context of or be linked to an armed conflict. GENOCIDE Genocide was described by the UN General Assembly as “a denial of the right of existence of entire human groups, as homicide is the denial of the right to life of individual human beings”.2 The Genocide Convention, ratified by BiH, Croatia and Serbia3, obligates states to prevent and punish the crime. The core provisions of the Convention, including the definition of the crime, also exist as customary international law, which is also reflected in the jurisprudence of the Court of BiH4. The Statutes of the ICTY and the ICTR copy the definition of the crime verbatim from the Genocide Convention.5 ICTY Statute Article 4: Genocide Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) imposing measures intended to prevent births within the group; (e) forcibly transferring children of the group to another group. The following acts shall be punishable: (a) genocide; (b) conspiracy to commit genocide; (c) direct and public incitement to commit genocide; (d) attempt to commit genocide; (e) complicity in genocide 2 G.A. RES. 96/1 U.N. DOC. A/RES/96/1 (Dec. 11, 1946). 3 The Genocide Convention
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