On November 22, all eyes will be on the United Nations International Criminal Tribunal for the former Yugoslavia (ICTY) as it makes its pronouncement of judgment in the case of the notorious “Butcher of Bosnia,” General Ratko Mladić, the former army chief of staff, and his then superior, Radovan Karadžić, president of Republika Srpska during the Bosnian War.
It must be noted that 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 beginning of the ICTY’s mandate, investigations were conducted into reports of the systematic detention and rape of women, men and children. More than a third of those convicted by the ICTY have been found guilty of crimes involving sexual violence. Such convictions are one of the tribunal’s pioneering achievements. They have ensured that treaties and conventions that have existed on paper throughout the 20th century have finally been put in practice and violations punished well into the 21st century.
The Hague Convention of 1907, the first international treaty implicitly outlawing sexual violence, did not end impunity for sexual crimes. For instance, in the aftermath of World War II, 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” – a thorny issue in a number of East and Southeast Asian nations.
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.
It took groundbreaking steps to respond to the imperative of prosecuting wartime sexual violence. Together with the Rwandan Tribunal, the ICTY was among the first courts of its kind to bring explicit charges of wartime sexual violence and define gender crimes such as rape and sexual enslavement under customary international law.
It was also the first international criminal tribunal to enter convictions for rape as a form of torture and for sexual enslavement as a crime against humanity, as well as the first 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.
Perpetrators of sexual violence are wide-ranging in nature, including members of armed forces, civilians, government officials, armed non-state actors such as ISIS, and humanitarian personnel. The overwhelming majority of the perpetrators of sexual violence are male.
Sexual violence occurs on the street, in homes, at checkpoints, in places of detention and in places of refuge, such as refugee camps. Aside from the immediate pain, terror and humiliation, survivors of sexual violence often face long-term physical health problems and psychological trauma.
The physical consequences of sexual violence include fatal injuries, infertility, incontinence, chronic pain, debilitating injuries, infections and unwanted pregnancies
The physical consequences of sexual violence include fatal injuries, infertility, incontinence, chronic pain, debilitating injuries, infections and unwanted pregnancies.
Due to the insecurities that conflict inevitably brings, medical treatment for these debilitating injuries is all too often not available for obvious reasons.
Asian lawyers like myself are glad that the ICTY has built on the judgements and pronouncements of other international tribunals. Through its own landmark judicial decisions, it has contributed to the growing awareness of the need to prosecute crimes of conflict-related sexual violence.
Despite this laudable collective effort by the international community, more than 20,000 survivors of wartime sexual violence in Bosnia-Herzegovina are still being denied justice a quarter of a century after the outbreak of war in the former Yugoslav republic, according to an Amnesty International report released on September 12. Many of the victims are still trying to piecie together their shattered lives with little access to the medical, psychological and financial assistance they desperately need.
International justice will be fatally compromised if the international community continues to permit persons accused of genocide, “ethnic cleansing,” mass rape and murder to remain at liberty.
Undoubtedly, ad hoc International Criminal Tribunals and the International Criminal Court have tirelessly worked toward ending the impunity of conflict-related sexual violence.
For the former Yugoslavia states, a downright tragic yet arresting chapter comes to an end, but for human rights activist Nadia Murad Basee Taha and her fellow Yazidi victims of ISIS in Iraq – it is just the beginning.
Impunity cannot be tolerated and will not be. In an interdependent world, the rule of law must prevail.
The world and Asia must never forsake them in their time of need.