THE INTERNATIONAL MILITARY TRIBUNALS THE NUREMBERG TRIALS

The Nürnberg trials held in Nürnberg, Germany, in 1945 to 1946, indicted and tried
former Nazi leaders as war criminals by the International Military Tribunal. The
indictment lodged against them contained four counts: (1) crimes against peace (i.e.,
the planning, initiating, and waging of wars of aggression in violation of international
treaties and agreements), (2) crimes against humanity (i.e., exterminations,
deportations, and genocide), (3) war crimes (i.e., violations of the laws of war), and (4)
“a common plan or conspiracy to commit” the criminal acts listed in the first three
counts.

The authority of the International Military Tribunal to conduct these trials stemmed from
the London Agreement of August 8, 1945. On that date, representatives from the United
States, Great Britain, the Soviet Union, and the provisional government of France
signed an agreement that included a charter for an international military tribunal to
conduct trials of major Axis war criminals. Later 19 other nations accepted the
provisions of this agreement.

The tribunal was given the authority to find any individual guilty of the commission of
war crimes and to declare any group or organization to be criminal in character. If an
organization was found to be criminal, the prosecution could bring individuals to trial for
having been members, and the criminal nature of the group or organization could no
longer be questioned.
During the first session of the tribunal, 24 former Nazi leaders were charged with the
perpetration of war crimes, and various groups (such as the Gestapo, the Nazi secret
police) were charged with being criminal in character.

After 216 court sessions, on October 1, 1946, the verdict on 22 of the original 24
defendants was handed down. Three were sentenced to life imprisonment: Rudolf
Hess, Walther Funk, and Erich Raeder. Twelve of the defendants were sentenced to
death by hanging. Ten of them—Hans Frank, Wilhelm Frick, Julius Streicher, Alfred
Rosenberg, Ernst Kaltenbrunner, Joachim von Ribbentrop, Fritz Sauckel, Alfred Jodl,
Wilhelm Keitel, and Arthur Seyss-Inquart—were hanged on October 16, 1946. Martin
Bormann was tried and condemned to death in absentia, and Hermann Göring
committed suicide before he could be executed.

In rendering these decisions, the tribunal rejected the major defenses offered by the
defendants. First, it rejected the contention that only a state, and not individuals, could
be found guilty of war crimes; the tribunal held that crimes of international law are
committed by men and that only by punishing individuals who commit such crimes can
the provisions of international law be enforced. Second, it rejected the argument that the
trial and adjudication were ex post facto. The German defendants at Nuremberg were
being tried for several categories of offense that had no precedent whatever under
international law.

The major focuses of the prosecution were crimes against the peace, crimes against
humanity, war crimes, organizations, and conspiracy. Of all these, only war crimes were
a clearly recognized category under pre-existing international law.
Technically, the only war crimes committed by the Germans involved the treatment of
Allied prisoners of war and of the populations of conquered countries.
The crimes against peace counts of the indictment dealt with the German decision to
"wage aggressive war." This was acknowledged by all at Nuremberg to be an "ex post
facto" since the defendants were indicted for something that was not a crime until after
they had committed it.

The crimes against humanity count dealt with the Nazi treatment of the Jews and other
groups. Because international law had always left a state entirely free to dispose of its
own nationals in any way it saw fit, including murdering them, the Nazis were again
being tried under an ex-post-facto law, to the extent they were being tried for the murder
of Jews and others who were German nationals.

The "organizations" and "conspiracy" counts was an attempt to put certain Nazi party
organizations, such as the SS, on trial. If the organizations were convicted, any German
who had been a member of one during the war would have been considered guilty,
though not present at the trial to defend himself. The conspiracy theory required vague
clouds of evidence to bind defendants together, instead of connecting them to specific
acts they had ordered or carried out.

THE TOKYO TRIALS

The Potsdam Declaration of 1945, issued by the United States, Great Britain, and China
(and later adhered to by the Soviet Union), addressed the issue of punishing war crimes
committed by the Japanese government.

The International Military Tribunal for the Far East was established by a charter issued
by U.S. Army General Douglas MacArthur, the Supreme Commander for the Allied
Powers. The Allied Powers consisted of Great Britain, The United States, France, the
Soviet Union and China.

Together with Germany and Italy, Japan was a member of the Axis powers in World
War II. Japan began its campaign to conquer or control Southeast Asia and the Pacific
Ocean in 1931 when its forces occupied the province of Manchuria in China. Six years
later, Japan invaded the Shanghai-Nanjing region of China and occupied the city of
Nanjing. There, Chinese civilians and prisoners of war were killed in a savage campaign
of rape, torture, and mass murder by Japanese forces. Similar acts were committed by
Japanese forces in other areas of China and during their wartime occupation of Manila
in the Philippines. After the United States dropped two atomic bombs on Japan in
August 1945, Emperor Hirohito issued an unconditional surrender to the Allied Powers.

The Extraordinary Chambers in the Courts of Cambodia (ECCC)

Cambodia was a protectorate of France for 90 years. Cambodia eventually won its
independence from France and under King Sihanouk, it became the Kingdom of
Cambodia.
In 1965 Sihanouk decided to break its relations with the US and in doing so, it allowed
North Vietnamese guerrillas to set up bases in Cambodia. Sihanouk, however, was
overthrown in a coup by Lon Nol in 1970, but he was, himself overthrown by the Khmer
Rouge, a communist leaning group led by Pol Pol. Pol Pot renamed the country
Kampuchea, and put communism in place by way of a new constitution.

Under Pol Pot, all city dwellers were forcibly moved to the countryside to become
agricultural workers. In the regime’s pursuit of a classless agrarian society, many were
sent to labor camps, prisons and killing fields across the nation, where they died of
torture, disease and starvation.

The Khmer Rouge, in their attempt to socially engineer a classless communist society,
took particular aim at intellectuals, city residents, ethnic Vietnamese, civil servants and
religious leaders. They created a policy to establish and operate cooperatives and
worksites.

People were deliberately forced to work in a climate of control, threats, fear, hunger and
discrimination. There were periods of acute food shortages in the district and people
died as a result. Various people died from malnutrition, overwork and sickness.

Large numbers of people disappeared, without there being any lawful process whereby
persons could properly seek and obtain information about the fate of their relatives.

In one particular instance, workers were forced to build a dam and two dykes. Workers
at the dam did not have a choice: they were required to work regardless of the weather
conditions, had to perform hard work for long hours, were not allowed to have rest days,
were constantly monitored by their unit chiefs to see how much work they produced and
were disciplined if they did not meet work quota.

Violators were killed in front of co-workers and were threatened with being killed too if
they did not work hard enough.

Party members and revolutionary combatants who were suspected of being enemies
were brought to interrogation rooms handcuffed and blindfolded, their legs chained
during questioning. Interrogation methods included: beatings with sticks, rods, electrical
wire, whips and other tools; electroshocks; suffocation through covering the head with a
plastic bag; covering the mouth and nose with a towel and pouring cold water from a
kettle; and the extraction of toenails and fingernails. Some prisoners died after they had
their blood drawn, which was taken for the treatment of wounded RAK soldiers. At the
very least, 11,742 prisoners were executed by a blow to the neck with an iron bar, after
which their throats were slit with a knife and their bodies disemboweled – and buried in
mass graves.

The attack victimized millions of civilians throughout Cambodia and resulted in a large
number of refugees fleeing to neighboring countries. The Khmer Rouge also started
invading its neighbor Vietnam. It wasn’t until Jan. 7, 1979, that a Vietnam-backed
invasion forced the Khmer Rouge to retreat into the jungle.
The Khmer Rouge was supported by China, whereas Vietnam’s Great Power friend was
the Soviet Union. The events in Cambodia were part of wide global changes occurring
in 1989. In the course of that year the Soviet Union’s power started to unravel rapidly
and a revolutionary wave of political and economic change swept across Central and
Eastern Europe.

The ripples started first in Poland where political reforms brought the independent trade
union, Solidarity, led by Lech Walesa, to power in September 1989.

The Berlin Wall came crashing down in Germany in November and the Velvet
Revolution swept to power in Czechoslovakia with Vaclav Havel being appointed as
president in December.

In Southeast Asia, the decline of the Soviet Union meant the drying up of support for the
Socialist Republic of Vietnam and the People’s Republic of Kampuchea; developments
that created the opportunity to end the geopolitical stand-off that had protracted the civil
war in Cambodia.

In 1989, the Vietnamese troops withdrew from Kampuchea. Hun Sen becomes its prime
minister. The country was re-named the State of Cambodia and Buddhism was re-
established as the state religion.

To address the atrocities committed in Cambodia, the Extraordinary Chambers in the

Courts of Cambidia was established in 2006. The Chamber hearing the case against
the Khmer Rouge leaders was satisfied that the attack directed against the civilian
population of Cambodia.

The Chamber further found that the attack was carried out on political, national,
ethnical, racial and religious grounds.

Also, when there was an ongoing international armed conflict between Vietnam and
Democratic Kampuchea, the victims of these crimes were Vietnamese civilians or
prisoners of war and thus protected persons for the purposes of the Geneva
Conventions.

The United Nations-backed tribunal convicted just three men. Of the three people
convicted, two were members of the highest circle of the radical Communist regime:
Nuon Chea, who was No. 2 in the hierarchy, and Khieu Samphan, the chief of state.
They were sentenced to life in prison for crimes against humanity, genocide and other
crimes.

The third convict, Kaing Guek Eav, known as Duch, was also sentenced to life in prison
for crimes against humanity.

Hun Sen, who has served as Cambodian Prime Minister since 1985, opposed further
indictments, suggesting that an expanded trial would lead to civil war.
A former foreign minister also said further indictments “will not be allowed.” The present
government includes several former members of the Khmer Rouge, including Mr. Hun
Sen himself, and it has been careful to protect its own.

USE OF FORCE NOTES

Article 2 (4) of the UN Charter reads: All members shall refrain in their international
relations from the threat or use of force against the territorial integrity or political
independence of any state, or in any other manner inconsistent with the purposes of the
United Nations.

The prohibition on the threat or use of force, however, admits of two exceptions.

The first derogation is Article 42 (Chapter VII). Therein it is stated that “the Security
Council may take action by air, sea, or land forces as may be necessary to maintain or
restore international peace and security. Such action may include demonstrations,
blockade, and other operations by air, sea, or land forces of Members of the UN.”

The second derogation from Charter is Article 51 (Chapter VII). Article 51 emphasizes
the collective security system which gets activated in the moment when a state submits
a report to the SC that it used force in self-defense. From that moment on, the Council
is authorized to take all necessary measures against the aggressor. On the other hand,
only the provided report by the state to the Council that acts on behalf of the right of
self-defense does not necessarily mean that the use of force is legally permissible.

It means that SC is obligated to carry out investigative measures and to make decision
about the legal permissibility of the force used in self-defense. Although SC has ‘moral’
obligation to carry out investigative measures and to make decision about the legal
permissibility of the force used in self-defense, Article 51 does not require from the
Council to present its opinion on the legality of every reference to self-defense. The
Council does not come out with statements in practice. Only a small number of SC
resolutions explicitly refer to Article 51. They usually confirm, in the most general sense,
the right of state to take action in self-defense.

For example, the SC Resolution 1234 (1999) concerning the conflict in the Democratic
Republic of Congo (DRC), in a general sense, confirmed the right of individual and
collective self-defense according to Article 51. It is stated that: the Security Council,
expressing its concern at all violations of human rights and international humanitarian
law in the territory of the DRC, is recalling the inherent right of individual and collective
self-defense in accordance with Article 51 of the UN Charter; reaffirms the obligation of
all States to respect the territorial integrity, political independence, and national
sovereignty of the DRC; demands an immediate halt to the hostilities and condemns all
massacres carried out on the territory of the DRC and calls for international
investigation into all such events.
By reading Article 51 it appears that several requirements must be cumulatively fulfilled
in order the use of force in self-defense be legally permissible:

• Force may be used in self-defence only in relation to an ‘armed attack’ whether

imminent or ongoing. The ‘armed attack’ may include not only an attack against a
state’s territory, but also against emanations of the state such as embassies and armed
forces. (Wilmshurst 2005, chap.1). It means that the force is permissible only if there is
direct act of aggression against a state that activates Article 51 of the UN Charter;

• The performed act of aggression, or the armed attack, has to be serious. The Charter
empowers the Security Council to decide whether it is a serious armed attack in
question;

• The right of self-defense activates only in case of committed unlawful act.

Member states are not allowed to invoke the right of self-defense in order to implement
coercive measures of the UN (for example: it is illegal to use force in order to impose
peace and security when previously there has not been committed an armed attack);

• The exercise of the right of self-defense must comply with the criterion of
‘proportionality’ and ‘necessity’. The force is used to shot back the attacker and it stops
at the moment when the threat is removed due to the force has been primarily used;

• The force is legitimate only if there is actual attack or the attack has already been
committed. The force is not allowed to be used in order to establish a certain type of
justice, conquering territories and carrying out reprisals;

• At the moment when UN Security Council has taken appropriate action against the
aggressor, the individual right of self-defense turns into collective right of selfdefence.

Measures taken in the exercise of the right of selfdefense must be reported immediately
to the SC. The Council retains the right and responsibility to authorize collective military
action to deal with actual or latent threats. Any military action must be in accordance
with the rules of the international humanitarian law that is governing the conduct of
hostilities.

NICARAGUA CASE

When a State claims that it used force in collective selfdefence, the Court would
examine the following:

(1) Whether the circumstances required for the exercise of self-defence existed; and

(2) Whether the steps taken by the State, which was acting in self-defence, corresponds
to the requirements of international law.

Under international law, several requirements must be met for a State to exercise the
right of individual or collective self-defence:
(1) A State must have been the victim of an armed attack;

(2) That State must declare itself as a victim of an armed attack. The assessment on
whether an armed attack had taken place or not, is done by the State who was
subjected to the attack. A third State cannot exercise a right of collective self-defence
based on that third State’s own assessment;

(3) In the case of collective self-defence, the victim State must request for assistance.
There is no rule permitting the exercise of collective self-defence in the absence of a
request by the State which regards itself as the victim of an armed attack.;

(4) A State that is attacked, does not, under customary international law, have the same
obligation as under Article 51 of the UN Charter to report to the Security Council that an
armed attack happened – but “the absence of a report may be one of the factors
indicating whether the State in question was itself convinced that it was acting in self-
defence” (see paras 200, 232 -236).

The Court, then, looked extensively into the conduct of Nicaragua, El Salvador, Costa
Rica, and Honduras to determine if (1) an armed attack was undertaken by Nicaragua
against the three countries, which in turn would (2) necessitate those countries to act in
self-defense against Nicaragua (paras 230 – 236). The Court noted that (1) none of the
countries who were allegedly subject to an armed attack by Nicaragua declared
themselves as victims of an armed attack; (2) they did not request assistance from the
United States to exercise its right of self-defence; (3) the United States did not claim
that when it used force, it was acting under Article 51 of the UN Charter; and (4) the
United States did not report that it was acting in self-defense to the Security Council.

The Court concluded that, based on the above, the United States cannot justify its use
of force as collective self-defence.

In any event, the Court held that the criteria relating to necessity and proportionality,
that is required to be met when using force in self-defence – were also not fulfilled (para
237).

The allegation of self-defense cannot be said to correspond to a "necessity" justifying

the United States action against Nicaragua on the basis of assistance given by
Nicaragua to the armed opposition in El Salvador because it was possible to eliminate
the main danger to the Salvadorian Government without the United States embarking
on activities in and against Nicaragua. Accordingly, it cannot be held that these activities
were undertaken in the light of necessity. Whether or not the assistance to the contras
might meet the criterion of proportionality, the Court cannot regard the United States
activities relating to the mining of the Nicaraguan ports and the attacks on ports, oil
installations, etc., as satisfying that criterion. Whatever uncertainty may exist as to the
exact scale of the aid received by the Salvadorian armed opposition from Nicaragua, it
is clear that these latter United States activities in question could not have been
proportionate to that aid.
THE PRINCIPLE OF NON-INTERVENTION

Aside from the issue of self-defense, also taken up in the Nicaragua case was the
principle of non-intervention.

The principle of non-intervention requires that every State has a right to conduct its
affairs without outside interference. In other words, the principle forbids States or groups
of States to intervene directly or indirectly in internal or external affairs of other States.
This is a corollary of the principle of sovereign equality of States.

A prohibited intervention must accordingly be one bearing on matters in which each

State is permitted, by the principle of State sovereignty to decide freely. One of these is
the choice of a political, economic, social and cultural system, and the formulation of
foreign policy. Intervention is wrongful when it uses methods of coercion in regard to
such choices, which must remain free ones. The element of coercion, which defines,
and indeed forms the very essence of, prohibited intervention, is particularly obvious in
the case of an intervention which uses force, either in the direct form of military action,
or in the indirect form of support for subversive or terrorist armed activities within
another State (para 205).”

Nicaragua stated that the activities of the United States were aimed to overthrow the
government of Nicaragua, to substantially damage the economy and to weaken the
political system with the aim to coerce the Government of Nicaragua to accept various
political demands of the United States.

THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA

The indictments in the ICTY addressed crimes committed from 1991 to 2001 against
members of various ethnic groups in Croatia, Bosnia and Herzegovina, Serbia, Kosovo
and the Former Yugoslav Republic of Macedonia.

Slobodan Milošević, at the time the former President of the Federal Republic of
Yugoslavia, became the first sitting head of state to be charged with war crimes in
Kosovo, Later, it was extended, to include indictments on Croatia and Bosnia, in the
latter case accusing him of genocide for his alleged collusion in the massacre of more
than 7,000 Muslim males at Srebrenica in July 1995.

But how did the atrocities start in Yugoslavia? Yugoslavia was a communist federation
made up of six republics: Bosnia and Herzegovina, Croatia, Macedonia, Montenegro,
Serbia and Slovenia. Josip Tito ruled Yugoslavia for three decades. After his death in
1980, there was a rise in nationalism and separatism among the republics.

Croatia and Slovenia declared their independence from Yugoslavia in 1991. Macedonia
also voted for independence. Serbia and Montenegro proposed forming an alliance and
retaining the name "Yugoslavia."

Bosnia and Herzegovina wanted to declare independence so it held a referendum in

March 1992. The voters overwhelmingly chose independence. More than 99 percent of
the voters cast ballots for independence. But only two of the three main ethnic groups –
the Croats and Bosnian Muslims - voted. They comprise about 64 percent of the
electorate. The third main ethnic group of Bosnia, the Serbs, staged a boycott.

After the voting, Serb gunmen set up barricades and cut off the republic's capital,
Sarajevo, from the rest of the republic. Eleven people died in that unrest alone. What
makes Bosnia-Herzegovina so volatile is that none of the ethnic groups make up a
majority: the Bosnian Muslims represent 45 percent; the Croats, 16 percent. Serbs
represent approximately 31 percent of the population but claim 65 percent of the
territory. Serb leaders proclaimed a “Serb Republic of Bosnia and Herzegovina,” and
received backing and weapons from neighboring Serbia and the Serb-controlled
Yugoslav Army. The siege of Sarajevo began as Serb forces struck areas occupied by
Bosnian Muslims and Croats with artillery.

Radovan Karadžić, the political leader of the Bosnian Serbs, announced the creation of
a Bosnian Serb army, which would absorb members from the Yugoslav army. Gen.
Ratko Mladić was named the commander.

Serb forces took control of the town of Prijedor where Bosnian Serbs established camps
where primarily nonSerb detainees were held in “appalling” conditions. More than 3,000
Muslims and Croats were killed in the region.

In May, 1993 The UN Security Council formally established the International Criminal
Tribunal for the former Yugoslavia.

Even with the creation of the Criminal Tribunal, on March, 1995 Karadžić, the leader of
the Bosnian Serbs, signed a document called “Directive No. 7.” It called for combat
operations to “create an unbearable situation of total insecurity with no hope of further
survival or life” for those living in the UN safe areas of Srebrenica. In April, 1995, the
chief prosecutor of the international tribunal thus announced that Radovan Karadžić and
Ratko Mladić were being investigated for masterminding a campaign of ethnic
cleansing.

Despite knowledge that they were being investigated, the directed Bosnian Serb forces
to attack Srebrenica in July 1995. But when Mladić’s forces entered Srebrenica they
found it mostly empty. Thousands of people — mostly women, children and the elderly
— fled to nearby Potocari. The able-bodied men began trekking through the woods to
reach the Muslim-controlled city of Tuzla.

In Potocari, Mladić and his senior officers separated males over the age of 16 from the
rest of the refugees. Women and children were put on buses and trucks. Mladić was
believed to have been in command when over 7,000 people were murdered in four days
in July, 1995. The strict military control was attributed to Mladic and Karadzic as the top
men who ordered the murder.

Mladić and Karadžić were indicted by the International Criminal Tribunal for the former
Yugoslavia on charges of genocide; crimes against humanity “by persecuting Bosnian
Muslim and Bosnian Croat civilians on national, political and religious grounds”; and
being “criminally responsible for the unlawful confinement, murder, rape, sexual assault,
torture, beating, robbery and inhumane treatment of civilians.”

Their indictments were amended in November 1995 to include charges of genocide and
crimes against humanity in relation to Srebrenica. Bosnian Muslim and Croat forces
seized territory from the Serbs. This victory forced the Serbs to negotiate. At the United
States’ urging, a ceasefire agreement was reached on Oct. 5, 1995 but its
implementation was delayed when the Bosnian government insisted on electricity being
restored to Sarajevo first. The presidents of Bosnia and Serbia and Bosnian Serb
leaders Karadžić and Mladić agreed to the ceasefire.

The presidents of Bosnia, Serbia and Croatia agreed to a U.S.-brokered peace

framework that was worked out in Dayton, Ohio over 20 days. Although Bosnia and
Herzegovina would share a presidency and parliament, it would also be split into two
political entities: Republika Srpska for Serbs, and the Federation of Bosnia and
Herzegovina for Muslims and Croats. The Dayton Peace Agreement was formally
signed in Paris in December, 1995.

After evading capture for 16 years, Mladić was arrested in Serbia. His trial began at the
Hague in May, 2012. Mladić was found guilty on 10 out of 11 counts. He was convicted
of “genocide and persecution, extermination, murder and the inhumane act of forcible
transfer in the area of Srebrenica in 1995” and “persecution, extermination, murder,
deportation and inhumane act of forcible transfer” in areas throughout Bosnia, and
“murder, terror and unlawful attacks on civilians in Sarajevo” and “hostage-taking of UN
personnel.” He was sentenced to life in prison. He appealed the conviction in 2018.

Radovan Karadzic was arrested in Belgrade in July 2008, 10 years after he had gone
underground. He disappeared after he had been indicted for war crimes. When he
reappeared, he had a new identity, passing himself off as a new-age health guru,
practicing alternative medicine, writing articles and even lecturing under an alias.

As earlier mentioned, Karadžić led a breakaway Serb territory when Bosnia declared
independence from a crumbling Yugoslavia in 1992, after the Soviet Union’s collapse.

The subsequent conflict was marked by atrocities against civilians, most carried out by
Bosnian Serb troops, who conducted a campaign of “ethnic cleansing” to get rid of
Muslims and ethnic Croats.

About 100,000 people were killed and 2.2 million were left homeless. The mass killings
culminated in the Srebrenica massacre. The ITCY held Karadzic criminally responsible
for genocide in the 1995 Srebrenica massacre. It was held that without Karadzic’s
support, the Srebrenica massacre could not have happened. As the most senior
Bosnian Serb leader, Karadzic's responsibilities during the Bosnian War, together with
General Ratko Mladic, included ultimate oversight of the Bosnian Serb army.

Radovan Karadžić has been found guilty of genocide over the 1995 massacre in
Srebrenica and sentenced to 40 years in jail.
Karadžić’s other convictions were for five counts of crimes against humanity and four of
war crimes, including taking UN peacekeepers hostage, deporting civilians, murder and
attacks on combatants.

Karadzic appealed his conviction and the Mechanism for International Criminal
Tribunals’ appeals chamber confirmed the verdict and increased his sentence from 40
years to life in prison, citing the gravity of his crimes Aside from Karadzic and Mladic,
the following were also landmark decisions of the ICTY:

1. Duško Tadić: first-ever trial for sexual violence against men The Trial Chamber found
how Serb forces confined thousands of Muslims and Croats in camps. In a horrific
incident in the Omarska Camp, one of the detainees was forced by uniformed men,
including Duško Tadić, to bite off the testicles of another detainee. In May 1997, the
Trial Chamber found Tadić guilty of cruel treatment (violation of the laws and customs of
war) and inhumane acts (crime against humanity) for the part he played in this and
other incidents.

2. Mucić, Delic and Landzo: rape as torture The three were charged with sexual
violence against Bosnian Serb civilians kept in a prison camp. The Trial Chamber
considered a number of sexual violence charges during the trial. Esad Landžo, a camp
guard, forced two brothers to commit fellatio on each other in full view of other
detainees, and placed a burning fuse around their genitals. He also placed a burning
fuse around the genitals of another male detainee and forced him to run between rows
of prisoners.

Landžo’s superior responsible for these acts. Zdravko Mucić, the camp commander,
was found guilty of these and other crimes committed by his subordinates. The crimes
were qualified as grave breaches and violations of the laws and customs of war.

A legal precedent was set in the adjudication of the rape charges committed by the
deputy camp commander, Hazim Delić. Rape was qualified as a form of torture – the
first such judgement by an international criminal tribunal.

Two years later, on appeal, Tadić was additionally sentenced for grave breaches of the
1949 Geneva conventions: inhumane treatment and wilfully causing great suffering or
serious injury to the body or health. In the Judgement, the Appeals Chamber set out
that “Through his presence, Duško Tadić aided and encouraged the group of men
actively taking part in the assault. Of particular concern here is the cruelty and
humiliation inflicted on the victim and the other detainees”. In January 2000 Tadić was
sentenced to 20 years’ imprisonment.

Delić raped two women detained in the camp, Grozdana Ćećez and Milojka Antić,
during interrogations. The judges ruled that the purpose of the rapes was to obtain
information, punish the women for their inability to provide information and to intimidate
and coerce them. The Trial Chamber also found that the violence suffered by the two
women had a discriminatory purpose - it was inflicted on them because they were
women.
When passing this judgement in 1998, the Trial Chamber considered "the rape of any
person to be a despicable act which strikes at the very core of human dignity and
physical integrity.” The judges held that acts of rape may constitute torture under
customary international law.

The ICTY Appeals Chamber upheld the findings of the Trial Chamber and sentenced
Hazim Delić to 18, Zdravko Mucić to 9 and Esad Landžo to 15 years of imprisonment.

3. Furundžija: sexual violence in focus The first case at the ICTY to concentrate entirely
on charges of sexual violence was that against Anto Furundžija. The trial focused on the
multiple rapes of a Bosnian Muslim woman committed during interrogations led by
Furundžija who was at the time the commander of a special unit of the Croatian
Defence Council.

It was not Furundžija personally, but his subordinate who raped the woman in front of a
laughing audience of other soldiers. Nevertheless, as the unit’s commander, Furundžija
was found guilty as a co-perpetrator and as an aider and abettor. The conviction was
upheld on appeal and Furundžija was sentenced to 10 years’ imprisonment.

Importantly, the Tribunal’s judges also confirmed that rape may also amount to
genocide, if the requisite elements are met, and may be prosecuted accordingly.”

A landmark precedent was set in 1998 when ICTY’s sister tribunal the ICTR rendered a
judgement in Akayesu case in which it was concluded that rape constitutes genocide.

4. Kunarac, Kovac and Vukovic: sexual enslavement and rape as crimes against
humanity The second ICTY trial to deal entirely with charges of sexual violence made
another significant contribution to international criminal law. The judgement broadened
the acts that constitute enslavement as a crime against humanity to include sexual
enslavement and determined the relationship of gender crimes to customary law.

The three accused Bosnian Serb army officers Dragoljub Kunarac, Zoran Vuković and
Radomir Kovač, played a prominent role in organising and maintaining the system of
infamous rape camps in a Bosnian town.

Bosnian Serbs gathered Muslim women in detention centres around the town where
they were raped by Serb soldiers. Many women were then taken to apartments and
hotels run as brothels for Serb soldiers. The judges heard the testimonies of over 20
women regarding repeated acts of rape, gang rape and other kinds of sexual assault
and intimidation.

The women also described the way in which they were obliged to perform household
chores, were forced to comply with all the demands of their captors, were unable to
move freely and were bought and sold like commodities. In short, they lived in
conditions of enslavement.

There was no doubt in the Judges’ minds that the enslavement was sexual in nature.
This was a significant ruling, because international law had previously associated
enslavement with forced labour and servitude. The definition of the crime was therefore
widened to include sexual servitude.

All three accused were also found guilty of rape as a crime against humanity. This was
the first such conviction in the ICTY’s history, closely following on the historical
precedent set by the ICTR’s judgement in the Akayesu case in 1998.

In the context of a widespread and systematic attack on civilians, rape was used to
implement a strategy of “expulsion through terror,” the ultimate goal of which was to
drive the Muslims out of the region. Rapes became the way in which “the Serbs could
assert their superiority and victory over the Muslims. After the rape, the accused would
assert the women should be privileged to be now carry a Serb baby.”

The convictions were upheld by the Appeals Chamber in June 2002. Kunarac, Kovač
and Vuković received 28, 20, and 12 years’ imprisonment respectively.

5. Radislav Krstić: link between rape and ethnic cleansing Whereas the Kunarac et al.
judgement clearly defined rape as a tool of war, the case of Radislav Krstić established
a link between rape and ethnic cleansing, which, in the context of Srebrenica crimes in
July 1995, was closely associated with genocide.

Krstić was a General Major in the Bosnian Serb Army and commander of the Drina
Corps during the operation which resulted in the execution of more than seven
thousand Bosnian Muslim boys and men from Srebrenica in July 1995.

As Srebrenica fell under Bosnian Serb army control, about 20-30,000 of its Muslim
residents, mostly women, children and the elderly, fled to the nearby village of Potočari.
Several thousand sought protection inside the UN military camp. Serb soldiers entered
the compound, mingled in the crowd and threatened, beat and killed people. The
soldiers also committed many acts of rape.

The Trial Chamber found Krstić responsible for the crimes committed in Potočari,
including the rapes, which were deemed as “natural and foreseeable consequences of
the ethnic cleansing campaign”. The Judges noted that, although “ethnic cleansing” was
not a legal term, it had been used in various legal analyses before. The Trial Chamber
concluded that there were “obvious similarities between a genocidal policy and the
policy commonly known as ''ethnic cleansing”.

INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA

At the time of the Nuremberg trials, there was no legal concept of "genocide." On
September 2, 1998, the International Criminal Tribunal for Rwanda issued the world's
first conviction for the defined crime of genocide after trial before an international
tribunal. A man named Jean-Paul Akayesu was judged guilty of genocide and crimes
against humanity for acts he engaged in and oversaw while mayor of the Rwandan town
of Taba.
Born in 1953 in a Taba commune, the young Akayesu was an active member of the
local football team. The father of five children, he worked as a teacher.

Akayesu was a respected leader in his community, widely considered a man of high
morals, intelligence, and integrity. Akayesu became politically active in 1991 and was
elected local president of the Democratic Republican Movement (MDR), an opposition
political party. Initially reluctant to run for public office, Akayesu was elected mayor of
Taba, a position he held from April 1993 until June 1994.

As mayor, Akayesu was the leader of the village and was treated with respect and
deference by the population. He oversaw the local economy, controlled the police,
administered the law, and generally led the social life in the village.

After the Rwandan genocide began on April 7, 1994, Akayesu initially kept his town out
of the mass killing, refusing to let militia operate there and protecting the local Tutsi
population. But following an April 18 meeting of mayors with interim government leaders
(those who planned and orchestrated the genocide), a fundamental change took place
in the town and apparently within Akayesu. He seems to have calculated that his
political and social future depended on joining the forces carrying out the genocide.
Akayesu exchanged his business suit for a military jacket; witnesses saw him incite
townspeople to join in the killing and turn former safe havens into places of torture,
rape, and murder.

As the war's tide turned, Akayesu escaped to Zaire (now the Democratic Republic of the
Congo) and later to Zambia, where he was arrested in October 1995. In a trial held
before the International Criminal Tribunal for Rwanda he was convicted of genocide, the
first such conviction in an international court and the first time rape was considered a
component of genocide. Akayesu is serving a life sentence in a prison in Mali.