History has shown that armed conflicts always include all types of atrocities that one can even imagine. Unfortunately, sexual abuse is no exception to that. Sexual violence is often used as a powerful tool for breaking the morale of the defeated side. Moreover, it is understood and even expected as a reward for soldiers of the occupying army.[1] In such circumstances, it becomes a pattern, which is the reason why most rapists do not even think of themselves as perpetrators of one of the severest forms of war crime.[2] Rape and other forms of sexual abuse are often used not only to gratify the troops but also to achieve higher goals, such as ethnic cleansing or genocide. Case law of the ad hoc tribunals testifies to the different forms of sexual crimes in armed conflicts, targeting both male and female victims, including children.[3] Such examples show that rape and other forms of sexual abuse are global phenomena that occur in every military culture around the world.[4] Sexual violence committed during armed conflicts usually has a much more brutal form than when committed during peacetime. Rapes in armed conflicts are often committed by a group and in front of relatives and other witnesses, which is even more humiliating for the victims.[5] Yet, international criminal law was only until recently hesitant to face such crimes.
This paper examines the problem of rape and other forms of sexual abuse as a modality of war crime. The first part analyses the development of the concept of sexual offences as a war crime, with a special emphasis on relevant case law of the ad hoc tribunals for Former Yugoslavia (further: ICTY), Rwanda (further: ICTR), as well as the International Criminal Court (further: ICC), and discusses important details of the Akayesu Judgement (ICTR), the Furundľija Judgement and the Bemba Gombo Judgement (ICC). These three cases are the first rape cases before each of these courts. The second part of the paper focuses on Croatian criminal law, specifically the Croatian legislator prosecuting rape as a part of the actus reus of war crime which was passed in 2011. This change caused certain confusion in practice which now has to apply the new provision to crimes committed in 1991 and 1992. The paper reviews this change on the legislative level, pointing to the latest decision of the Supreme Court of Croatia which has become an important precedent with far-reaching legal consequences.
The recognition of rape as a war crime has been a long process that can be observed on two levels. The first level is of a legislative nature, and focuses on the relevant international documents that deal with rape as an international crime. The second level is of a practical nature, and refers to relevant case law of international criminal tribunals. A short overview of the most important points of both of these levels will be presented here.
The first documents that recognised the sexual abuse of women during an armed conflict can be found as far back as the late fourteenth century, when the military code of Richard II (1385) subjected the rapists of women during war to capital punishment. From then up to the present time, many documents can be found that prohibit sexual violence, but mostly only indirectly. Such conclusion, for example, can be drawn from Art. 46 of the Hague Convention Respecting the Laws and Customs of War and Land (1907).[6] The protection of women against rape is also mentioned in Art. 27 of the Geneva Convention IV (1949) and in Art. 76 (1) of the Additional Protocol I (1977). However, none of these documents specified rape as a war crime. In more recent history, it was the UN Resolution 827 (1993) which contained the first ever condemnation of rape in war and which eventually led to the decision to establish the ICTY. Namely, the Security Council received several reports of the mass and systematic rape of Muslim women in Bosnia. Their reaction eventually turned out to be "a key element in the motivation for the establishment of the tribunal".[7] Despite that, the ICTY Statute only listed rape as a crime against humanity.[8] The ICTR
- 173/174 -
Statute went one step further in the sense that it mentioned rape, enforced prostitution and other forms of sexual violence as a part of "outrages upon personal dignity". This was a certain improvement but it still held a so-called "patriarchal perspective of rape as an assault on family honor".[9] The ICC Statute finally listed rape and other forms of sexual violence expressis verbis as war crimes. In its essence, this provision is the same as the provision for crimes against humanity.[10] On the grounds of this short overview of the most important documents in international law, one may conclude that, although international humanitarian law has obviously prohibited rape for centuries, this was almost never done explicitly. Moreover, in most documents that dealt with this issue, sexual violence was primarily limited to rape. Other forms of sexual abuse have often been left out. Also, international documents have mostly protected women as a targeted group of rape, neglecting other potential victims (men before all). Raising awareness in this area was accomplished only recently, with the ICC Statute which is the first document that determined sexual violence as a war crime. Relevant case law developed on the grounds of these documents will be examined here and the discussion will focus on the most important judgements after World War II, which is when the body of international criminal jurisprudence was formed.
There is no doubt that sexual violence has been a part of every armed conflict that has ever occurred. Yet international criminal tribunals have often hesitated to recognize and prosecute sexual crimes.[11] For example, in the Nuremberg Trials there was no conviction for sexual violence, even though it was widespread. The French and Soviet prosecutors introduced evidence of rape as a weapon of war but they neglected to bring charges against sexual violence, even though the applicable law at the time recognized this form of violence.[12] That is the reason why none of the Nuremberg verdicts even mentioned rape or other sexual crimes.
The situation was slightly better at the Tokyo trials. The Tokyo Tribunal found several highranking Japanese military officers responsible for widespread sexual violence, especially during the Japanese occupation of Nanking. The Court convicted them as war criminals. However, the Tribunal totally overlooked the sexual slavery of "comfort women" which were kept and raped by Japanese soldiers.[13]
The key moment in the struggle against sexual violence in the context of war crimes was the Akayesu judgement of the ICTR. This was the first judgement in the history of international criminal law that addressed crimes involving sexual abuse. Jean-Paul Akayesu was the mayor of the most powerful people in Taba (Rwanda). Among other allegations he was accused and then convicted of mass genocidal rapes at the Taba Commune. This is important because this is the first verdict that did not limit the criminalization of sexual abuse only to crimes against humanity and which enabled full prosecution of these crimes.[14] He was not convicted as having committed the rapes himself, but that he "had reason to know and in fact knew that sexual violence was taking place on or near the premises of the bureau communal, and that women were being taken away from the bureau communal and sexually violated".[15] Instead of preventing these crimes, Akayesu encouraged them and "sent a clear signal of official tolerance for sexual violence, without which these acts would not have taken place".[16] This is one of the forms of command responsibility. It should be noted, however, that the initial charges against Akayesu did not contain genocidal rape accusations - these were inserted only after the intervention of the advocates for gender justice in Rwanda.[17] The Akayesu judgement was the first such judgement in the history of international criminal case-law that defined rape and sexual violence. Rape was defined as "a physical invasion of a sexual nature, committed on a person under circumstances which are coercive"[18] and sexual violence was defined in a more broad sense as "any act of a sexual nature which is committed on a person under circumstances which are coercive... and it is not limited to physical invasion of the human body and may include acts which do not involve penetration or even physical contact".[19]
The ICTY referred to sexual abuse for the first time in the case of Dragan Nikolic. In their interlocutory judgement, the trial chamber advised the prosecutor to review evidence of sexual assaults and to decide whether to charge Nikolic with these crimes, either as a crime against humanity or as a grave breach or war crimes.[20]
The next important precedent of the ICTY was the Celebiči Judgement. One of the accused was charged with the repeated rape of the two victims. In this judgement, the Court adopted the definition of rape given by the ICTR in Akayesu.[21] It decided that rape can constitute torture as defined by the Torture Convention (1984) and Art. 2 and 3 of the
- 174/175 -
ICTY Statute. The trial chamber set out more detailed criteria that had to be satisfied to fulfil such qualification.[22]
The most important ICTY decision concerning rape was the Furundľija Judgement in 1998. Anto Furundľija was a local commander of a special army unit of the Croatian army in Bosnia and Herzegovina called the "Jokers". He was convicted that he did not do anything to stop or prevent the brutal rape of a woman who was being held in custody by his unit and interrogated as a witness. Instead, he watched the rape and then continued with the interrogation as if nothing had happened. He was convicted of torture and outrages upon personal dignity, including rape and sentenced to ten years in prison. This case is very significant because the ICTY found that the earlier definitions of rape, established in the Akayesu and Celebiči cases, were insufficient because they suffered from a lack of specificity. The Court then gave a more precise definition of rape as "the sexual penetration, however slight: of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator or of the mouth of the victim by the penis of the perpetrator by coercion or force or threat of force against the victim or a third person"?[23] One may notice that such a casuistic definition of rape is not characteristic for continental European legal orders. It is much more similar to the British and American legal tradition. The special significance of this verdict is that it admitted coercion not only when it is pointed directly towards the victim, but also when it is pointed towards third parties.[24]
After the Furundľija Judgement, the ICTY dealt with rape in several other cases in which it recognized sexual violence as a violation of the laws and customs of war and as torture. In these cases, the ICTY revised the Furundľija definition of rape. For example, in the proceedings against Kunarac, Kovač and Vukovič, who were on trial for the mass rape of Muslim women in the Foča camps and detention centres (Bosnia and Herzegovina), the Court found the Furundľija definition to be too narrow because it only requires coercion, force, threat of force against the victim or other person, and it does not consider "other factors which would render an act of sexual penetration non-consensual or non-voluntary".[25] Instead, the ICTY finds decisive whether the victim was in a position to give legally valid consent.[26] This example clearly shows how the definition of rape in international criminal law has gradually evolved and become much more similar to continental criminal laws as well as to the relevant practice of the European Court of Human Rights.[27] The ICTY followed the same logic in the judgements against Radovan Karadľič, where it once again emphasized that "sexual penetration occurs without the consent of the victim".[28]
The most recent decision of international criminal courts concerning rape and sexual violence is the Bemba Gombo Judgement of the ICC. This decision was brought on 21 March 2016 against Jean-Pierre Bemba Gombo. He is the former Vice-President of the Democratic Republic of Congo. He was the leader of the Mouvement de Libération du Congo (MLC) and the Commander-in-Chief of the Armée de Libération du Congo (ALC). The MLC soldiers committed many serious international crimes, including rape, in the period between October 2002 and March 2003. Jean-Pierre Bemba Gombo, as a commanding officer, knew that the MLC soldiers were committing these crimes and he failed to take measures to prevent them or to submit the matter to the competent authorities. He was found guilty on the basis of command responsibility for crimes against humanity and war crimes, including rape. This judgement is very important because it is the first ICC conviction for rape.[29] Also, the fact that Bemba Gombo was convicted on the basis of the concept of command responsibility declares that sexual crimes are not only isolated acts of soldiers on the field but "a core international crime which demands positive actions by superiors".[30]
Unlike the ICTY judgements, the Bemba Gombo Judgement contains almost no references to consent. Instead, it is much more focused on the objective elements of the crime. This basically means that the prosecution must prove only force, threat of force or coercion or taking advantage of a coercive environment. One or more of these circumstances automatically presumes the lack of consent of the victim.[31] This Judgement also gives a significant contribution to the more extensive interpretation of the term "coercive environment" as an element of rape. It expands the Akayesu definition of coercive environment[32] even more by interpreting that several factors can cause the creation of such an environment. The ICC here especially emphasizes circumstances such as "the number of people involved in the commission of the crime, or whether the rape is committed together with other crimes".[33] Such approach is new in international criminal law and considered to be more victim-orientated.[34] It also the only logical approach, since rape in war crime is, unlike rape during peacetime, usually not committed by force and coercion. Instead, it is committed by a group of armed and often very
- 175/176 -
drunk men whose basic appearance is sufficient to cause threat and fear to the victim, who has no option but to let the perpetrators do whatever they want.
The definition of rape by the ICC was long expected and underlined as of great significance for the future development of not only international criminal case law, but also national criminal laws as well.[35]
Even though many scholars argue that national and international criminal law treatment of rape is not to be equalized,[36] one cannot object to the fact that international criminal law has a significant amount of influence on domestic legislators and practice. In this context one should also observe recent changes in declaring rape as a war crime in Croatian criminal law.
Namely, the war in Croatia (1991-1995) is known by the terrible atrocities committed above all by the Serbian side in the occupied areas.[37] Rape was no exception: Serbian paramilitary structures committed organized mass rapes and other forms of sexual violence against women, children and men. As in every war, sexual violence was used as a tool of aggression and as a weapon of war. Due to the relatively large dark figure, it is difficult to estimate how many rapes were committed during the war. Some estimations claim that this figure varies between 1501 and 2437 rapes, with the majority committed in Vukovar and Eastern Slavonia.[38] Since the war ended and up to the present time Croatian courts are still running criminal trials for many war crimes, including rape.
When dealing with war crimes committed during the war in Croatia, Croatian courts apply the Criminal Code which was in force at that time (in Croatian: Osnovni krivični zakonik Republike Hrvatske, further: OKZRH). However, in certain aspects courts are obliged to apply more recent criminal codes since those are more lenient to the perpetrator. The provision concerning rape as a modality of a war crime is one such situation.
The OKZRH recognises three criminal offences of war crimes: war crimes against the civilian population (Art. 120), war crimes against the wounded and sick (Art. 121), and war crimes against prisoners of war (Art. 122). Most elements are common to all three of these crimes and the differences are only in certain particularities connected to each protected groups of victims. The mutual elements for all three crimes are the following:
- The existence of war, armed conflict or occupation at the time and place of committing of the acts;
- The victim must have protected status under international humanitarian law;
- Causal nexus between the wrongful acts and war, armed conflict or occupation;
- Committed acts must represent grave breaches of international humanitarian law with serious consequences for the victims.[39]
Besides these general elements, the Criminal Code also prescribes special elements for committing of war crimes. Most of these elements are very clear and have not caused any problems in Croatian jurisprudence. However, certain elements have opened some arguable issues. One such element is sexual violence. Namely, sexual violence was subsumed under acts of torture or inhuman treatment. The new Criminal Code from 2011 (further: CC/11), however, specified rape, sexual slavery, forced prostitution and other forms of sexual violence which represent grave breaches of the Geneva Conventions (Art. 91, para. 2, sub. para. 22) as one of the forms of other grave breaches of laws and customs of war in international or internal armed conflict. The aim of the legislator was to harmonize the text of the Criminal Code with Art. 8/2/b/xxii, which also emphasizes sexual violence separately from other forms of inhuman and humiliating treatment.[40] The problem, however, occurred because the new Code predicted a more lenient punishment: instead of the minimum five years as was set out in the OKZRH and later amendments, the CC/11 prescribed a minimum of three years in prison which under the new Code made the punishment more lenient for the perpetrator. This was explained by the fact that the acts described in paragraph 2 of this provision (which includes sexual violence) were more moderate than the gravest breaches of humanitarian law in paragraph 1.[41] According to the CC/11, sexual violence is punishable with a minimum five years in prison only if it is committed on a large number of persons or in a specially cruel or treacherous way (Art. 91, para 3 CC/11).
This opens up the issue on how to qualify rape as a war crime in cases which are still open, whether on the basis of the OKZRH or the CC/11? According to the nullum crimen sine lege praevia principle, the Court must consider all changes that have happened in the period from when the criminal offence was committed until the verdict of the
- 176/177 -
appeal court. If the new legislation which is to be applied on the concrete case-facts is in any way more favourable for the perpetrator, it must be applied. In this case, the CC/11 is more lenient due to the favourable minimum which means that rapes and forms of sexual violence in the context of war crimes must be qualified by that Code.
It is, however, arguable whether such a change is justifiable. The new Code basically expressed the view that sexual violence (Art. 91, para 2, CC/11) is lenient or at least not as serious as torture and inhuman treatment (Art. 91, para 1, CC/11). On what grounds can one justify such a conclusion? And, more importantly, does this mean that rape and other forms of sexual violence do not at the same time represent torture, inhuman treatment and causing of great suffering to victims? Such a conclusion would seem not only illogical but also empirically incorrect. The European Court of Human Rights expressed the attitude in several judgements that rape constitutes a breach of Art. 3 of the European Convention on Human Rights, which refers to the prohibition of torture, inhuman and degrading treatment or punishment.[42]
The practical consequences of the described legislative change are already visible in practice. The Supreme Court of Croatia dealt with this issue in two recent cases. In the first case, two defendants were accused of rape as a war crime. They forced the female victim in occupied Vukovar in 1991 to choose which one of them she would have sexual intercourse with. If she refused to choose, they threatened her that she would be raped by the whole battalion. The County Court in Osijek convicted them on the grounds of OKZRH.[43] The Supreme Court, however, ruled that the CC/11 is to be applied as more lenient for the defendants.[44]
In another similar case the County Court in Osijek convicted two defendants for the multiple rape of a female victim in Dalj, a village near the Serbian border which was occupied by Serb forces in 1991. They brutally raped the victim on several occasions during August 1991. They once even raped her in front of her parents and sister, who were forced to watch. The County Court convicted them applying the OKZRH,[45] but the Supreme Court overruled in favour of the CC/11.[46]
These two precedents opened the door for widespread use of the new Code, even for the most brutal cases of sexual violence in war. This led to an unjustifiable distinction between sexual violence and torture and it can eventually lead to a lenient sentencing policy. On the other hand, such minimization of rape in the context of war crimes is very contrary to the new regulation of general sexual crimes (committed in peacetime), which have been regulated in a much stricter regime in the CC/11. In the field of sexual crimes the CC/11 introduced new forms of rape (for example, negligent rape, rape by deception!) and it raised the age of consent from fourteen to fifteen. It is clear that the intention was to increase the level of protection against sexual abuse; however it is not clear why the exact opposite was done with war crimes, especially if one bears in mind that rape during war conditions usually occurs under much more brutal circumstances than in peacetime.
This paper deals with the sensitive topic of rape as an element of war crimes. Although every armed conflict, whether internal or international, always includes all kinds of terrible atrocities, sexual violence is considered to be one of the worst by its consequences and scope. It is used for different purposes: to raise the level of morale of the troops, but also to humiliate the opponent in conflict. Yet, only until recently, the issue of sexual abuse was taboo in international legal documents and, especially, in international case-law. One can only guess the reasons for that. The fact remains that relevant jurisprudence in this area is still under development and there are issues to be defined in a clearer way.
In cases of rape, even in peacetime, it always includes more than one practical problem. Above all, it is difficult to prove and secondary victimization often dismisses the victim's initiative to report the case to authorities and to testify against the perpetrators. In cases of war crime rapes this issue seems to be even more emphasized. Namely, when rape and other sexual violence happen in war circumstances, victims are much more intimidated. They are afraid of revenge and that leads to them not showing any resistance and later to not reporting what happened. Victims, especially if they have been subjected to repeated violence, try to forget and that is why the dark figure of war crime rapes is so large. On the other hand, due to the inability (or the unwillingness) of the authorities to act immediately most often there are no physical traces which leaves only witness testimonies as potential evidence material. This makes such cases more difficult to prove, and is also most likely one of the reasons why there are so few verdicts in this area of law, either at the national or international level.
- 177/178 -
This paper first presented a concise analysis of relevant international criminal law and practice on rape as a war crime. Special emphasis was placed on international tribunals case-law and the most important verdicts of the ICTR, ICTY and the ICC were summed up.
The second part was devoted to the issue of rape as a war crime in Croatian criminal law. Although the Croatian legal system is not one the larger European systems, what makes it interesting in this area of law is that Croatia, even more than twenty years after the end of the war, is still facing several war crime trials, many of them concerning rapes in occupied areas. Public opinion in Croatia is well aware of this problem. However, it seems that the Croatian legislator lost its empathy for this topic somewhere when it, without any reasonable explanation, changed the criminal legislation and predicated more favourable punishment for rape as a war crime. Moreover, this change caused an unjustified differing between rape, as a milder form of crime, and torture or inhuman treatment, as a more serious form. The legislator, however, neglected to explain what the essential difference between these two types of war crime was, and whether that meant that sexual violence is not torture and inhuman treatment. This was a grave mistake which unfortunately can never again be rectified due to the nullum crimen sine lege praevia principle which obliges the courts to apply the most favourable law that was in force between the committing of the act and the end of the trial. This has already manifested itself in Croatian jurisprudence, as was explained in the recent examples.
In any future changes to Croatian criminal law, the legislator should seriously consider abandoning such an illogical model of regulation and to return it to as it was before. Even though such modification would no longer be applicable to rape cases from the war in the nineties, it would still be necessary to carry out should Croatia ever again face a similar situation in the future or if it has to try someone who has committed such atrocities elsewhere. This is of great importance for the respecting of human rights and the rights of the victim standards. In this sense, this paper intends to initiate further debate about this issue, in Croatian and comparative literature. ■
NOTES
[1] Cryer, R., Friman, H., Robinson, D., Wilmshurst, E., An Introduction to International Criminal Law and Procedure, Second Edition, Cambridge: Cambridge University Press, 2010, p. 292.
[2] However, some data show that there are situations in which some groups decide not to engage in sexual violence. Wood claims that "59% of 177 armed actors in the civil wars between 2000 and 2009 in twenty African countries were not reported to have engaged in rape or other forms of sexual violence". Wood, E. J., Conflict-related sexual violence and the policy implications of recent research, International Review of the Red Cross (2014), 96 (894), p. 459.
[3] One of the most notorious examples of the rape of children in the history of international criminal law is the "Rape of Nanking" in 1937 during which Japanese soldiers raped around 20,000 women and children. A similar example also occurred in more recent history during the war in Bosnia and Herzegovina (1992-1995). See Kovalovska, A., Rape of Muslim Women in Wartime Bosnia, ILSA Journal of International & Comparative Law, (3) 1997, p. 934.
[4] The war in Bosnia and Herzegovina is also known by its cruel and mass rape cases. The exact number of rape victims has not been defined. However, estimations vary between 10,000 and 60,000 women and girls. See Fabijanič Gagro, S., The Crime of Rape in the ICTY's and the ICTR's Case-Law, Zbornik Pravnog fakulteta Zagreb, 60, (3) 2010, p. 1315.
[5] Ibid, p. 1317.
[6] Ibid, p. 1311.
[7] Goldstone, R. J., Prosecuting Rape as a War Crime, Case Western Reserve Journal of International Law, (34) 2002, p. 278.
[8] Despite that, ICTY case law has interpreted rape and other forms of sexual violence as a grave breach of the Geneva Conventions of 1949. See for example Prosecutor v. Zejnil Delalic, Zdravko Mucic, Hazim Delic and Esad Landzo, Judgement No. IT-96-21-T, 1998 (further: Celebiči Judgement) and Prosecutor v. Anto Furundzija, Judgement No. IT-95-17/1-T, 1998 (further: Furundľija Judgement).
[9] Cryer, R., Friman, H., Robinson, D., Wilmshurst, E., An Introduction to International Criminal Law and Procedure, Second Edition, Cambridge: Cambridge University Press, 2010, p. 292.
[10] Schabas, W. A., The International Criminal Court, A Commentary on the Rome Statute, New York: Oxford University Press, 2010, p. 250.
[11] Some claim that this happened because sexual violence harms mostly women and the decision makers in international criminal law have been (and still are) mostly men. See Kirk McDonald, G., Crimes of Sexual Violence: The Experience of the International Criminal Tribunal, Columbia Journal of Transnational Law, (39) 2000, p. 9.
[12] It is interesting to note that prosecutors demonstrated incredible bashfulness towards even talking about these crimes. One can mention the statement of the French prosecutor, who asked the Court for forgiveness because he wanted to avoid "citing the atrocious details". This same prosecutor had no problem citing the atrocious details of other war crimes. Ibid, p. 10.
[13] Ibid.
[14] Ibid, p. 12.
[15] Prosecutor v. Akayesu, Judgement No. ICTR-96-4-T, 1998 (further: Akayesu Judgement), para. 452.
[16] Ibid, para. 693.
[17] Van Schaack, B., Engendering Genocide: The Akayesu Case Before the International Criminal Tribunal for Rwanda, Santa Clara Law Digital Commons, 2008, p. 1 - 2.
[18] Akayesu Judgement, para. 598.
[19] Ibid, para. 688.
[20] Goldstone, R. J., Prosecuting Rape as a War Crime, Case Western Reserve Journal of International Law, (34) 2002, p. 281-282.
[21] Celebici Judgement, para. 479.
- 178/179 -
[22] Ibid, para. 494.
[23] Furundzija Judgement, para. 185.
[24] Kirk McDonald, G., Crimes of Sexual Violence: The Experience of the International Criminal Tribunal, Columbia Journal of Transnational Law, (39) 2000, p. 14.
[25] Prosecutor vs. Kunarac, Kovač and Vukovič,Judgement No. IT-96-23-T&IT-96-23/1T, 2001, para. 438.
[26] Ibid, para. 440.
[27] The European Court of Human Rights has made it very clear in many verdicts that the physical resistance of the victim should not be considered as a necessary element of rape. Instead, emphasis should be on the existence or non-existence of the victim's consent. See for example the verdict M. C. vs Bulgaria, 39272/98,4[th] Dec 2013, para 166.
[28] Prosecutor vs. Radovan Kardľič, Judgement No. IT-95-5/18-T, 2016, para. 511.
[29] ICC conducted a rape trial also in the Katanga case but he was acquitted in 2014.
[30] Natalya Clark, J., The First Rape Conviction at the ICC, An Analysis of the Bemba Judgement, Journal of International Criminal Justice, (14) 2016, p. 672 - 673.
[31] Prosecutor vs Bemba Gombo, Judgement No. ICC-01/05-01/08, 2016 (further: Bemba Gombo Judgement), para 106.
[32] In the Akayesu Judgement, the ICTR stated that "...coercive circumstances need not be evidenced by a show of physical force. Threats, intimidation, extortion and other forms of duress which prey on fear or desperation may constitute coercion, and coercion may be inherent in certain circumstances, such as armed conflict or the military presence...". Akayesu Judgement, para 688.
[33] Bemba Gombo Judgement, para 104.
[34] Natalya Clark, J., The First Rape Conviction at the ICC, An Analysis of the Bemba Judgement, Journal of International Criminal Justice, (14) 2016, p. 687.
[35] Grewal, K., The Protection of Sexual Autonomy under International Criminal Law, The International Criminal Court and the Challenge of Defining Rape, Journal of International Criminal Justice, (10) 2012, p. 374.
[36] See for example Schomburg, W., Peterson, I., Genuine Consent to Sexual Violence under International Criminal Law, American Journal of International Law, (101) 2007, p. 126.
[37] It is necessary to emphasize that the crimes did not occur only on the Serbian, but also on the Croatian side. The Croatian justice system has shown responsibility by prosecuting crimes on both sides. However, certain authors are sceptical about "partiality in prosecuting mostly non-Croats or leniency towards members of the Croatian army". La Haye, E., War Crimes in Internal Armed Conflicts, Cambridge University Press, 2010, p. 262.
[38] ®unec, O. et al., Procjena broja ľrtava seksualnog nasilja tijekom Domovinskog rata na području Republike Hrvatske i optimalni oblici obeątečenja i podrąke ľrtvama, United Nations Development Programme, Zagreb, 2013, p. 38.
[39] See Turkovič, K. in Novoselec, P. (ed.), Posebni dio kaznenog prava, Pravni fakultet u Zagrebu, 2007, p. 117 - 126.
[40] Turkovič, K. et al., Komentar Kaznenog zakona, Narodne novine, Zagreb, 2013, p. 141 - 143.
[41] Ibid, p. 142.
[42] See for example the following verdicts: M. C. vs Bulgaria, 39272/98, 4[th] Dec 2013; D. J. vs Croatia, 42418/10, 3[rd] Jul 2012; Aydin vs. Turkey, 23178/94, 25[th] Sep 1977.
[43] County Court Osijek, No. K-Rz-8/12,4th Sep 2012.
[44] Supreme Court of Croatia, No. I Kľ 792/12-8, 23rd Jan 2013.
[45] County Court Osijek, No. K-Rz-1/15, 2nd Jun 2015.
[46] Supreme Court of Croatia, No. I Kľ 554/15-7, 15th Feb 2016.
Lábjegyzetek:
[1] The Author is Assistant Professor, Department of Criminal Sciences Faculty of Law Osijek, Josip Juraj Strossmayer University Osijek.
Visszaugrás
