The United Nations Security Council created ad-hoc international criminal tribunals in the former Yugoslavia (ICTY) and Rwanda (ICTR) to address violations of international law during the Yugoslavia conflict and the Rwanda genocide of the 1990s. These ad-hoc tribunals heard cases involving allegations of sexual assault and have assigned international criminal liability for the acts.

In 1993, the United Nations Security Council established the International Criminal Tribunal for the former Yugoslavia (ICTY) through resolution 827. Under the Statute of the ICTY, the Court may prosecute individuals for rape and torture as crimes against humanity and torture or inhuman treatment and willfully causing great suffering or serious injury to body or health as war crimes. The ICTY was established in order to bring to justice persons responsible for violations of international humanitarian law, to provide justice for victims, to deter further crimes and to aid in the restoration of peace in the former Yugoslavia. The Statute of the International Tribunal, also adopted in 1993 and later amended in 1998 and 2000, includes several provisions that categorize the kind of violence perpetrated against women as violations of international humanitarian law. The Statute of the International Tribunal defines crimes against humanity (Article 5) to include rape and torture. Genocide (defined in Article 4) includes "killing members of the group; causing serious bodily or mental harm to members of the group; and (d) imposing measures intended to prevent births within the group."

In 1995, the ICTY issued an indictment against defendant Dusko Tadic, which included an allegation of rape as a crime against humanity. The charges stemmed from incidents in May 1992 when Serb forces attacked Bosnian Muslim and Croat population centers in Opstina Prijedor, Bosnia-Herzegovina, forcing thousands of Muslims and Croats from their homes and into confinement. Tadic was found to have physically taken part in the torture and gang rape of over 12 female prisoners. The Tadic case clearly established that rape and sexual assault, committed during conflict, are crimes against humanity. In 1995, Radovan Karadzic and Ratko Mladic were indicted for murdering, raping and sexually assaulting Bosnian Muslim and Croat civilian women and girls who were held in detention facilities after the Bosnian Serb army attacked the safe area of Srebrenica. As of March 2006, the two men remain at large.  In 1996, the ICTY indicted Drogoljub Kunarac, Radomir Kovac and Zoran Vukovic for crimes against humanity arising from the detention of Muslim women in a Serb campaign to cleanse the municipality of Foca and the torture and degrading treatment of these women through systematic beatings, sexual assault and rape. This trial, sometimes referred to as the "rape camp case," is an example of how the systematic rape of women of another ethnic groups is used as a weapon of war. The ICTY convicted the three defendants of rape and enslavement of women as a crime against humanity in February 2001, the first time such a conviction has been handed down by this tribunal. The defendants received sentences ranging from 12 to 28 years imprisonment.

In the Furundzija decision, the Trial Chamber found the Bosnian Croat defendant guilty of two counts of war crimes including torture and aiding and abetting in outrages upon personal dignity, including rape. Furundzija was accused of interrogating a Muslim woman while she was sexually assaulted by another soldier. Although the defendant did not personally commit physical acts of sexual violence, he was found criminally liable as a co-perpetrator of torture. From U.N. Economic and Social Council, Contemporary Forms of Slavery: Systematic rape, sexual slavery and slavery-life practices during armed conflict, 53 (E/CN.4/Sub.2/2000/21) (6 June 2000). (PDF, 36 pages). Furundzija Trial Chamber Judgment of 10 December 1998    

In the ICTY's decision in the Celebici Camp case, three defendants were found guilty of grave breaches of the Geneva Conventions and war crimes for their roles in the commission of acts of sexual violence in the Celebici concentration camp. The ICTY indicted and prosecuted several defendants based on superior authority or command responsibility. In convicting the camp commander and deputy commander in the Celebici case, the Trial Chamber stated that superior officers could be held accountable not only for ordering, instigating or planning criminal acts carried out by subordinates but also for failing to prevent or repress criminal acts of subordinates. From U.N. Economic and Social Council, Contemporary Forms of Slavery: Systematic rape, sexual slavery and slavery-life practices during armed conflict, 54-56 (E/CN.4/Sub.2/2000/21) (6 June 2000). (PDF, 36 pages). Celebici Camp Judgment of 16 November 1998.  In this case, the Trial Chamber convicted the defendants for rape "as torture, a grave breach of the Geneva Conventions punishable under Article 3 of the [ICTY] Statute, as recognized by article 3(a)(a) of the Geneva Conventions."  The following excerpt from the judgment sets out the criteria by which the Trial Chamber determined that the sexual violence involved in the case constituted rape:

The Trial Chamber considers the rape of any person to be a despicable act which strikes at the very core of human dignity and physical integrity.  The condemnation and punishment of rape becomes all the more urgent where it is committed by, or at the instigation of, a public official, or with the consent or acquiescence of such an official.  Rape causes severe pain and suffering, both physical and psychological.  The psychological suffering of persons upon whom rape is inflicted may be exacerbated by social and cultural conditions and can be particularly acute and long lasting.  Furthermore, it is difficult to envisage circumstances in which rape, by, or at the instigation of a public official, or with the consent or acquiescence of an official, could be considered as occurring for a purpose that does not, in some way, involve punishment, coercion, discrimination or intimidation.  In the view of this Trial Chamber this is inherent in situations of armed conflict.  Accordingly, whenever rape and other forms of sexual violence meet the aforementioned criteria, then they shall constitute torture, in the same manner as any other acts that meet these criteria.

In the Omarka prison camp case, the Trial Chamber used the joint criminal enterprise theory to find the defendants guilty of persecution, including rape. The Omarska Camp Trial Chamber found that a joint criminal enterprise exists when two or more persons participate in a common criminal undertaking. The Court further found that subsidiary enterprises “may be established for the purposes of forced labor, another for purposes of systematic rape for forced impregnation, another for purposes of extermination, etc.”  The Trial Chamber found the camp to be a joint criminal enterprise persecuting non-Serbs through sexual, physical and mental violence. Anyone working in the camp would have known of the criminal activities. The Chamber found, however, that knowledge of the criminal acts alone was not sufficient to create criminal liability.  A liable individual must have knowledge and have participated in some meaningful way, such as engaging in the abuse or making the camp run more efficiently or effectively.  The Chamber found that individuals liable under the joint criminal enterprise theory were not liable only for the crime committed in furtherance of the criminal enterprise but also for all crimes committed that were foreseeable, even if unplanned. The Trial Chamber, finding that rape was clearly foreseeable, stated that “it would be unrealistic and contrary to all rational logic to expect that none of the women held in Omarska, placed in circumstances rendering them especially vulnerable, would be subjected to rape or other forms of sexual violence.” From  Kelly D. Askin, Omarska Camp, Bosnia: Broken Promises of “Never Again,” Human Rights Magazine, Winter 2003.

Compiled from: Diane Orentlicher, Sexual Assault Issues before the War Crimes Tribunal, http://www.wcl.american.edu/hrbrief/v4i2/orent42.htm, Julie Mertus, Judgment of Trial Chamber II in the Kunarac, Kovac and Vukovic Case, http://www.asil.org/insights/insigh65.htm, Case Status Reports: American University, War Crimes Research Office—http://www.wcl.american.edu/warcrimes/updates.cfm, Case Summaries: War Crimes Research Office--http://www.wcl.american.edu/warcrimes/publications.cfm, The Prosecution of Rape under International Law: Justice that is Long Overdue: http://law.vanderbilt.edu/journal/35-04/McHenry.pdf

International Criminal Tribunal for Rwanda

The Statute of the International Criminal Tribunal for Rwanda (ICTR) defines rape as a crime against humanity when "committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds." (Article 3). The Akyesu case, decided by the ICTR in September 1998, found Jean-Paul Akayesu guilty of crimes against humanity for ordering, instigating and aiding in multiple acts of rape, despite a failure to find that the defendant personally raped someone. The Akyesu decision is also significant for the broad definition of rape formulated by the ICTR, as a "physical invasion of a sexual nature, committed on a person under circumstances which are coercive." The ICTR also recognized, in deciding the Akyesu case, that rape could be used as a form of genocide, if committed "with specific intent to destroy, in whole or in part, a particular group, targeted as such. . . . rape and sexual violence . . . are even . . . one of the worst ways of inflicting harm on the victim as he or she suffers both bodily and mental harm."

The International Criminal Tribunal for Rwanda found Jean-Paul Akayesu, former mayor of the Taba commune, guilty of crimes of genocide and crimes against humanity arising out of massacres of ethnic Tutsis in the Taba commune in 1994.  The Trial Chamber noted that genocide is defined in the Convention for the Prevention and Punishment of the Crime of Genocide as "the act of committing certain crimes, including the killing of members of the group or causing serious physical or mental harm to members of the group, with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such." para. 13.  The Trial Chamber found that genocide targeting the Tutsi as a group in Rwanda was committed in 1994. para. 19.  The Chamber held that although the presence of an armed conflict may have facilitated the genocide by providing a pretext to incite violence against the Tutsis by identifying them with an armed faction, the presence of the armed conflict cannot be a mitigating circumstance for the genocide. para. 19.  The Chamber noted that in his official capacity, Akayesu had effective authority over the communal police and was responsible for maintaining order, but that after April 18, 1994 he was present at acts of violence against Tutsis, including armed instances of rape, and even ordered several killings. paras. 26-27.

The Chamber noted that there was no commonly-accepted definition of the term "rape" in international law. para. 37. Noting that rape was a form of aggression, the Chamber defined rape as "a physical invasion of a sexual nature, committed on a person under circumstances which are coercive. Sexual violence, including rape, is not limited to physical invasion of the human body and may include acts which do not involve penetration or even physical contact. The Chamber note[d] in this context 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." para. 38.

From International Criminal Tribunal for Rwanda, The Prosecutor v. Jean-Paul Akayesu, ICCTR-96-4-T (Sept. 2, 1998) (non-official judgment summary text released by the Tribunal) printed in International Law: In Brief, Association of the Society of International Law (August 31-Sept. 4, 1998).