Interpretation and Domestic Law: The Prosecution of Rape at the International Criminal Tribunal for the former Yugoslavia

AuthorDaniel Peat
PositionAssociate Legal Officer, International Court of Justice
Pages97-131
97
(2017) 3(1) CJCCL
Interpretation and Domestic Law:
e Prosecution of Rape at the
International Criminal Tribunal for
the former Yugoslavia
Daniel Peat*
In the late spring of 1992, the Secretary-General of the UN delivered a report to the
Security Council that captured the attention of the international community. Yugoslavia
– from which Croatia and Slovenia had declared independence less than a year before –
had fallen into a pitched civil war fuelled by bitter ethnic tensions between Serb, Croat,
and Muslim communities. Nestled in the centre of the former unied state, the nascent
republic of Bosnia-Herzegovina became the scene of atrocities not seen since the Second
World War. e gravity of such acts led to the creation of the International Criminal
Tribunal for the former Yugoslavia (“ICTY”), which was intended to facilitate the
restoration of peace and stability by providing a forum in which those guilty of grave
breaches of international humanitarian law could be brought to justice. However, faced
with a vague statute and little precedent to draw upon, the judges of the ICTY were
left with little choice but to innovate in order to adjudicate upon such crimes. One of
the ways that they bridged the gap between vague rules and concrete application was
by using domestic law to interpret international crimes and rules of procedure and
evidence. Yet despite the frequency with which the Tribunal adopted this technique, it
remains “the most varied and unexplained” use of any interpretive aid by the Tribunal.
is article aims to address some of those unanswered questions.
* Associate Legal Ocer, International Court of Justice. is article is
based on a lecture that I delivered at ompson Rivers University on 21
March 2016. I would especially like to thank Professors Lorne Neudorf
and Robert Diab for their assistance in organizing my visit and for
their hospitality throughout my stay. I would also like to thank Jennifer
Cavenagh and Giulia Pinzauti for their comments on previous drafts of
this article.
98
Peat, Interpretation and Domestic Law: Prosecution of Rape by the ICTY
I. I
II. A B H   ICTY
III. I R
A. e Historic Evolution of the Crime of Rape
B. Interpretation of Rape within the ICTR/ICTY
C. e Legacy of the ICTY Approach
IV. E  T’ U  D L
A. An Aront to the Principle of Legality?
B. Methodological Critiques
C. Understanding the Tribunal’s Reasoning
V. C
I. Introduction
In the late spring of 1992, the Secretary-General of the UN delivered
a report to the Security Council that captured the attention of the
international community. Yugoslavia – from which Croatia and Slovenia
had declared independence less than a year before – had fallen into a
pitched civil war fuelled by bitter ethnic tensions between Serb, Croat,
and Muslim communities. Nestled in the centre of the former unied
state, the nascent republic of Bosnia-Herzegovina became the scene of
atrocities not seen since the Second World War.1 e Serbs of Bosnia-
Herzegovina, the Secretary-General reported, were making a “concerted
eort to create ‘ethnically pure’ regions” in the Republic,2 employing
tactics that “were as brutal as they were eective”.3 Reports on the
situation documented the grim scene: the killing or displacement of 2.1
1. At the time of the reference on independence, the Bosnian population
consisted of 43% Slavic Muslims, 31% Serbs and 17% Croats: Virginia
Morris & Michael P Scharf, An Insider’s Guide to the International
Criminal Tribunal for e Former Yugoslavia (Ardsley, NY: Transnational
Publishers, 1995) vol 1 at 19.
2. Further Report of the Secretary-General pursuant to Security Council
Resolution 749 (1992), UNSCOR, 1992, UN Doc S/23900 at para 5.
3. Morris & Scharf, supra note 1 at 22.
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(2017) 3(1) CJCCL
million Bosnians by the summer of 1993,4 the systematic rape of women
and girls, and the operation of 715 detention centres in which rape,
torture, and execution was commonplace.5
e gravity of such acts led to the creation of the International
Criminal Tribunal for the former Yugoslavia (“ICTY” or the “Tribunal”),6
which came into existence on 25 May 1993.7 It was hoped that the
Tribunal would facilitate the restoration of peace and stability in the
area, providing a forum in which those guilty of grave breaches of
international humanitarian law could be brought to justice.8 As the rst
international criminal tribunal to be established since the Nuremberg
and Tokyo international military tribunals in the wake of the Second
4. Ibid.
5. Final Report of the Commission of Experts Established Pursuant to Security
Council Resolution 780 (1992), UNSCOR, 1994, UN Doc S/1994/674 at
paras 216-53 [Final Report pursuant to Res 780].
6. See eodor Meron, “Rape as a Crime under International Humanitarian
Law” (1993) 87 American Journal of International Law 424.
7. Resolution 827 (1993), SC Res 827, UNSCOR, 48th Sess, UN Doc S/
Res/827 (1993) [Resolution 827]. On the appropriateness of establishing
the ad hoc tribunals by Security Council resolution, as opposed to
convention or resolution of the UN General Assembly, see Morris &
Scharf, supra note 1 at 40-48; Mahmoud Cherif Bassiouni, e Law of
the International Criminal Tribunal for the Former Yugoslavia (Ardsley,
NY: Transnational Publishers, 1996) at 220; Report of the Secretary-
General pursuant to Paragraph 2 of Security Council Resolution 808 (1993),
UNSCOR, 1993, UN Doc S/25704 at paras 19-29 [Report pursuant to SC
Res 808]; Mia Swart, Judges and Lawmaking at the International Criminal
Tribunals for the former Yugoslavia and Rwanda (PhD esis, University of
Leiden, 2006) [unpublished] at 43-49.
8. Resolution 808 (1993), SC Res 808, UNSCOR, 1993, UN Doc S/
RES/808; Resolution 827, ibid.

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