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Problems Of Prosecution and Adjudication of Rape and Other Sexual Assaults under International Law
Kate Fitzgerald1
Full text available: PDF format *
Copious media coverage of hostilities in the former Yugoslavia placed the issue of rape in war firmly on the international agenda and foreshadowed the advent of a tribunal2 with explicit international jurisdiction to adjudicate rape and other sexual assaults. Consequently, the international community is now grappling with many of the dilemmas faced domestically in the prosecution and adjudication of these crimes, together with a host of new difficulties, both substantive and procedural, which ensue from an international jurisdiction. These difficulties must be confronted by a global community, considering the diversity of opinion, culture and expectations of justice that such community entails.
This article will examine some of the problems inherent in the international prosecution and adjudication of rape and other sexual assaults3 and, where relevant, will look at how they are being addressed by the International Criminal Tribunal for the former Yugoslavia (the `Tribunal'). By examining four broad areas - limits on evidence able to be led in cases of sexual assault, protection for victims and witnesses, collection of evidence and judicial education - it will be demonstrated that a progressive legislative framework is not necessarily sufficient to ensure successful international prosecution and adjudication of rape and other sexual assaults.
I. Introduction
Although the Statute of the International Tribunal for the Former Yugoslavia (the `Statute') was adopted by a resolution of the Security Council,4 the judges of the Tribunal were responsible for drafting the Rules of Procedure and Evidence (the `Rules').5 The problem they faced was the need to create a body of rules suitable for international penal law from a jurisdictional lacuna. A dearth of statutory or precedential international law meant that they had to draw from criminal procedure applied in a cross-section of national jurisdictions, while also paying particular attention to the situation in the former Yugoslavia. The rules as they stand represent an attempt to balance the rights of the accused and the victims and witnesses and the interests of the international community.
The Rules govern all proceedings before the Trial and Appeal Chambers, including the evidentiary standards relevant to the prosecutorial process. The general standard for the admissibility of evidence is consistent with the analogous provision6 of the Nuremberg Charter.7 However, due to the Charter's broad nature it is of limited assistance and many of the detailed provisions reflect subsequent developments in evidentiary rules.8 One example of this is Rule 96, which imposes limits on evidence that may be led in cases of sexual assault.9
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1 Solicitor, NSW, Australia. P.O. Box 12044, Elizabeth Street,
Brisbane, 4002, Australia. This article was written at the European University
Institute under the supervision of Professor Antonio Cassese, to whom the
author expresses gratitude for his substantial support and advice.
2 Pursuant to Resolution 808, UN Doc S/RES/808 (1993), the Security
Council decided to create an international Tribunal with limited competence to
undertake `the prosecution of persons responsible for serious violations of
international humanitarian law committed in the Former Yugoslavia since 1991'.
The Statute of the International Tribunal for the Former Yugoslavia was
approved and adopted by SC Res. 827, UN Doc S/RES/827 (1993), as an enforcement
measure under Chapter VII of the UN Charter.
3 While there is no doubt that men are subjected to sexual assault
(Annex to the Final Report of the United Nations Commission of Experts
Established Pursuant to Security Council Resolution 780 (1992), UN Doc
S/1994/674/Annexes, 27 May 1994. Vol 5 Annex IX Rape and Sexual Assault at
para. 20) and that women perpetrate or participate in attacks, (see J.
Ruff-O'Herne, 50 Years of Silence (1994), 79) this article assumes rape
and sexual assault of women as perpetrated by men. The reason behind this
assumption is that the majority of attacks are of this nature (see Amnesty
International, Rape and Sexual Assault by Armed Forces (1993), 5) and
that gender plays a decisive role in the nature of an attack being sexual. In
any event, much of the discussion is as applicable to assaults against men as
it is to those against women.
5 Article 15 of the Statute. The Rules were adopted on 11 February
1994, amended 5 May 1994, further amended 4 October 1994, revised 30 January
1995, amended 3 May 1995, further amended 15 June 1995, amended 6 October 1995,
further amended 18 January 1996, amended 23 April 1996, amended 25 June 1996
and 5 July 1996, amended 3 December 1996 and further amended 25 July
1997.
6 Article 19 of the Nuremberg Charter provides:
The Tribunal shall not be bound by technical rules of evidence.
It shall adopt and apply to the greatest possible extent expeditious and
non-technical procedure, and shall admit any evidence which it deems to have
probative value.
8 Article 89 states that evidentiary questions not specifically
addressed in the Rules are to be determined on the basis of fairness, the
spirit of the Statute and general principles of law.
9 There are wider associated concerns in relation to distinguishing
between sexual violence and non-sexual violence for the purpose of substantive
international offences on which the author has written separately; see Chapter
2 of unpublished thesis. However, this article only considers the procedural
provisions which attempt to overcome difficulties which have traditionally
impeded effective prosecution of crimes involving sexual violence.
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