The Tribunal has played a historic role in the prosecution of wartime sexual violence in the former Yugoslavia and has paved the way for a more robust adjudication of such crimes worldwide.
From the first days of the Tribunal’s mandate, investigations were conducted into reports of systematic detention and rape of women, men and children. Almost half of those convicted by the ICTY have been found guilty of elements of crimes involving sexual violence. Such convictions are one of the Tribunal's pioneering achievements. They have ensured that treaties and conventions which have existed on paper throughout the 20th century have finally been put in practice, and violations punished.
Almost half of those convicted by the ICTY have been found guilty of elements of crimes involving sexual violence
The first international treaty implicitly outlawing sexual violence, the Hague Convention of 1907, did not end impunity for these crimes: after World War II, for instance, the International Military Tribunal at Nuremberg did not expressly prosecute sexual violence, and the Tokyo Tribunal ignored the Japanese army’s enslavement of “comfort women”. In 1949, the landmark Geneva Conventions stated: “Women shall be especially protected … against rape, enforced prostitution, or any form of indecent assault.” The wars in the former Yugoslavia revealed the urgent need to bring these historic international laws out of theory and into the courtroom.
The ICTY took groundbreaking steps to respond to the imperative of prosecuting wartime sexual violence. Together with its sister tribunal for Rwanda, the Tribunal was among the first courts of its kind to bring explicit charges of wartime sexual violence, and to define gender crimes such as rape and sexual enslavement under customary law.
The ICTY was also the first international criminal tribunal to enter convictions for rape as a form of torture and for sexual enslavement as crime against humanity, as well as the first international tribunal based in Europe to pass convictions for rape as a crime against humanity, following a previous case adjudicated by the International Criminal Tribunal for Rwanda. The ICTY proved that effective prosecution of wartime sexual violence is feasible, and provided a platform for the survivors to talk about their suffering. That ultimately helped to break the silence and the culture of impunity surrounding these terrible acts.
The first international criminal tribunal to enter convictions for rape as a form of torture and for sexual enslavement as crime against humanity.
Many survivors — despite fearing for their lives and those of their families, and even though they often live with ongoing physical and psychological trauma — found the courage to testify before the ICTY. The bravery of these survivors was crucial in enabling the prosecution of wartime sexual violence, establishment of facts and adjudication of individuals’ responsibility for the crimes.
One Bosnian Muslim woman from Foča, eastern Bosnia and Herzegovina, testified about surviving rape as a 15-year-old. A Bosnian Serb woman from the area of Konjic testified that she could not believe such barbarism: “I didn’t realise that this would be happening … at the end of the 20th century, that someone would allow themselves to do this.” In many trials the Tribunal also examined charges of sexual assault against men, including in its first-ever case, that of Dušan Tadić.
The ICTY has taken positive steps to ensure victims of sexual violence can testify without retribution or fear for their safety. Through the development of its rules of procedure, the ICTY has sought to protect the victims of sexual violence from abusive lines of questioning during testimony. Witnesses can also testify under a pseudonym, with face and voice distortion in video feeds, or in closed session.
In addition, the ICTY established a robust Victims and Witnesses Section (VWS), which provides the witnesses with assistance prior to, during and after their testimony, ranging from practical issues to psychological counseling during their stay in The Hague. VWS strives to ensure that witnesses can experience their testimony as a positive and empowering event.
As part of its Completion Strategy, the ICTY has transferred several cases concerning intermediate and lower-ranking accused to courts in the region. The majority of the cases transferred to the Court of Bosnia and Herzegovina included charges of sexual violence. Importantly, the ICTY has built on the judgements and pronouncements of other international tribunals and, through its own landmark judicial decisions, it has contributed to the growing awareness of the need to prosecute crimes of wartime sexual violence.