Seeking justice through the ICTY: Frustration, skepticism, hope

The International Criminal Tribunal for the former Yugoslavia was established in 1993 to prosecute “persons responsible for serious violations of international humanitarian law committed in the territory.” But taking into account the thousands of victims of sexualized violence from the conflict is comprehensive prosecution even feasible?

Experts estimate the victims of sexualized crimes during the Balkan conflict at around 35,000, while Margot Wallström, the former UN Special Representative on Sexual Violence in Conflict, has said the totals are between 50,000 to 60,000. Yet the ICTY has only 28 convictions for these crimes under its belt, as well as about 20 ongoing cases.

International justice is a frustratingly slow and incomprehensive process—certainly, the ICTY is not the only international institution plagued by low conviction rates. In fact, it has better conviction rates than its sister international court, the International Criminal Tribunal for Rwanda (ICTR), in terms of prosecuting sexualized violence. Experts acknowledge that the court has set a major legal precedent for the prosecution of rape as a crime against humanity. And looking squarely at the court’s progress could be the only way to help the actual victims of these wars—the women and men who still live with the traumatic memories of what was perpetrated on them.

But, still, 28 convictions may sound like slow progress. I spoke to an ICTY press officer, Magdalena Spalinska, and asked about the low numbers.

“It is important to think about these case statistics within the context of the status quo prior to the establishment of the ICTY in 1993 and the role these cases have played in developing international legal norms on sexual violence,” she said.

This is a fair statement, given the vast improvements the ICTY has made in the international jurisprudence of sexualized violence. Before the establishment of the ICTY, or of the ICTR, sexualized violence was a marginalized issue in international law. The ICTY’s 1993 charter and subsequent case law set a major legal precedent for the prosecution of rape as a crime against humanity, a war crime, and an act of torture. The ICTY not only established important case precedents, but also redefined the rules of evidence and procedure in an attempt to protect victims from, among other things, abusive lines of questioning, which may have encouraged more victims to come forward.

“These steps represent long-term contributions aimed at making international courts more sensitive to the needs of victims of sexual violence who testify before them,” said Spalinska.

Toni Trapani, a former associate legal officer at the ICTY who is currently pursuing a PhD in international criminal law, told WMC’s Women Under Siege that the court has “broadened and influenced the actual definition of rape in some really positive ways.” Among them, the court has gotten rid of the “consent” paradigm, Trapani said, which is “based on the idea that the very nature of war/conflict negates consent in any real way. Thus, there is no real requirement to prove a lack of consent on the prosecutions part.”

This has allowed women like Grozdana Ćećez, a Serb storeowner, to freely testify at the court—to seek justice for what happened to her in May 1992.

Ćećez told the court how, while fleeing from place to place, she was captured and taken to the Čelebići prison camp, where she was repeatedly raped by the camp commander, identified as Hazim Delić.

“I didn’t realize that this would be happening to me, this at the end of the 20th century, that someone would allow themselves to do this,” Ćećez testified in disbelief. “He trampled on my pride and I will never be able to be the woman that I was.”

The tribunal convicted Delić and sentenced him to 18 years in prison for raping Ćećez and committing other crimes. This was the first time a court found rape to be a form of torture and found an accused guilty of it, according to the ICTY.

But, while acknowledging the important work of the tribunal, let’s not disregard valid criticism of it.

Although almost half of those indicted by the court had charges involving elements of sexualized violence included in their indictments, there have only been those 28 convictions. Many suspects, such as Bosnian Serb Milan Lukic, the former head of a paramilitary group, have been convicted of other war crimes but not charges of sexualized violence—even though many victims of the Balkans conflict and international law observers thought they should have been.

Rachel Irwin, a senior reporter with the Institute for War and Peace Reporting covering International Justice, spoke to WMC’s Women Under Siege about the dilemma of including sexualized violence crimes in indictments:

Is the fact that the prosecution proved its case on the counts it did include in the indictment what matters most in the end? Lukic did, after all, get life in prison, and this was upheld on appeal. Or was it just as important to include the sexual violence charges (even if they aren't “necessary” to achieve a conviction) in order to establish that those crimes happened and to give victims closure?

And while the ICTY has undoubtedly advanced the cause of prosecuting sexualized violence in wartime, setting important case law precedents may simply not be enough. Experts have criticized the ICTY and other international courts for being too costly, too slow, and not effective enough. Low levels of convictions and overturned verdicts are extremely troubling for those seeking justice.

International legal expert William Schabas, professor of International Law at Middlesex University and Human Rights Law at the Irish Centre for Human Rights, pointed out last year that in relation to the International Criminal Court, an acquittal is usually a demonstration of a functioning legal system where the presumption of innocence is genuinely applied. But when such a small number of perpetrators are being held to account for crimes in the first place, the overturning of verdicts is distressing.

“I think the recent controversies have frustrated and confounded a lot of people who have supported the tribunal’s work over the years,” said Irwin of the IWPR, “and also given ammunition to people who already were skeptical or outright dismissive of it.”

Indeed, the tribunal has been rocked by controversy over the past 12 months because of acquittals of high-profile defendants. This year, the court failed to convict Serbian intelligence officials Jovica Stanisic and Franko Simatovic for “joint criminal enterprise” in relation to crimes against humanity, and, late last year, the courts’ appeal chambers reversed the verdicts against Croatian General Ante Gotovina and Police Chief Mladen Markac, who had also been found guilty of crimes against humanity. These acquittals were followed by a public letter written by Danish Judge Frederik Harhoff, in which he claimed that ICTY President Theodor Meron had pressured judicial colleagues into acquitting Gotovina and former Yugoslavia army chief Momcilo Perisic.

Critics have also called the court “toothless” because it has sought reconciliation over justice, they say. Although these two concepts are not mutually exclusive, justice can often be overlooked in favor of societal reconciliation in post-conflict situations: Northern Ireland’s Good Friday Agreement, for example, provided for the early release of imprisoned paramilitaries from both sides. Yet the establishment of the ICTY seemed to many to be a promise that justice would be served to the victims of the Balkan conflicts, that the victims’ right to justice would not be sacrificed for short-term reconciliation.

And while the pursuit of reconciliation along with justice is not bad in itself, it is important to ensure that victims’ voices are not marginalized in the process. It is for this reason that the ICTY’s role in prosecuting terrible war crimes, such as widespread and systematic rape, was viewed as extremely important for the thousands of women seeking recognition and justice—instead of reconciliation.

“Women are not involved in the peace and reconciliation processes,” said Trapani. “United Nations Security Council Resolution 1325 and subsequent relevant resolutions have addressed this, but too softly and with little immediacy for present-day conflicts. I guarantee that if more women are involved in post-conflict situations, we will see more prosecutions for sexual violence.”  

Outside of the ICTY, victims of wartime sexualized violence have few domestic options for recourse. Amnesty International has criticized national authorities in Bosnia-Herzegovina for making commitments to improving victims’ access to truth, justice, and reparation, but failing to act upon their promises.

The ICTY has given itself the important task of prosecuting war crimes, making a crucial commitment to recognizing sexualized violence as a tool of war and to prosecuting such crimes accordingly. Complete prosecution with such widespread crime is never possible. However, that does not mean that further prosecutions for violent acts are not attainable.

Twenty years later, thousands of victims of sexualized violence are still waiting for some semblance of justice. Though the ICTY has done much, its work is not finished.

For our in-depth profile of how sexualized violence was used as a tool of war in Bosnia, click here.