*1 Many thanks to Mr. R. van Elst, Erasmus University, Rotterdam.
*2 Report of the Secretary-General pursuant to paragraph 2 of Security Council resolution 808 (1993), U.N. Doc. S/25704, at 13 (3 May 1993).
*3 See, e.g., Burgess A. Wolbert & Lytle L. Holmstrom, Rape: Victims of Crisis (1975); Robert J. Brady, Rape Trauma Syndrome (in particular chapter 3); Shana Swiss & Joan E. Giller: «Rape as a Crime of War: A Medical Perspective», 270 JAMA 612 (1993); Anne E. Goldfeld et al., «The Physical and Psychological Sequelae of Torture: Symptomatology and Diagnosis», 259 JAMA 2725 (1988).
*4 Violent crimes of a homosexual nature are not explicitly mentioned in international humanitarian law. However, this is understandable as the topic of homosexuality, even today, is not discussed freely. That international humanitarian law, insofar as it provides protection against rape and other sexual assaults, is applicable to men as well is beyond any doubt as the international human right not to be discriminated against (in this case on the basis of sex) does not allow derogation.
*5 International law also provides for the protection of children, e.g. the 1990 United Nations Convention on the Rights of the Child and the World Declaration on the Survival, Protection and Development of Children and the Plan of Action for its implementation.
*6 The Federal Republic of Yugoslavia (FRY) was party to the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. It was also a party to the Geneva Conventions of 1949. FRY was also party to the Additional Protocols to the Geneva Conventions. The former Republics of FRY are probably bound by the general treaty obligations undertaken by FRY itself.
*8 In countries where the principle of expediency is a part of penal law, the State is obliged to prosecute when social obligations necessitate.
*9 Article III of the Convention on the Prevention and Punishment of the Crime of Genocide also provides for a wide range of punishable acts.
*10 The responsibility for omission, as applied at the trials after the Second World War (e.g., the Yamashita Case, the Hostage Case, the Pohl Trial, and the Einsatztruppen Trial), was, like the other principles of individual criminal responsibility, reaffirmed in, e.g., the General Assembly Resolution 95 (I) of 1946, the Convention on the Prevention and Punishment of the Crime of Genocide, the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity. The Charters of Nuremburg and Tokyo recognized this responsibility for Governments and even heads of State. Bernard V.A. Roling, «Aspects of the Criminal Proceedings for Violations of the Laws of War», in The New Humanitarian Law of Armed Conflict 199-220 (A. Cassese ed., 1979); Frits Kalshoven, Constraints on the Waging of War 18-19 (International Committee of the Red Cross, 2nd ed. 1991).
*11 Even if a resistance movement or a guerilla organization cannot be considered an independent party to the armed conflict, the combatants of these groups can be bound by the provisions of the Fourth Geneva Conventions if their organization is related to a State. Third Geneva Convention, article 4, paragraph 2.
*12 Bernard V.A. Roling, «Aspects of the Criminal Proceedings for Violations of the Laws of War», in The New Humanitarian Law of Armed Conflict 199, 204, 219 (A. Cassese ed., 1979). Roling considers this climate to be mainly the «climate of opinion», responsible for mass-scale «system criminality», which he considers to be «criminality which has been officially promoted or tolerated, or which is an expression of the prevailing spiritual climate».
*13 See Section II.
*14 See Section III.
*15 «The obligation on the High Contracting Parties to search for persons accused to have committed grave breaches imposes an active duty on them. As soon as a Contracting Party realizes that there is on its territory a person who has committed such a breach, its duty is to ensure that the person concerned is arrested and prosecuted with all speed. The necessary police action should be taken spontaneously, therefore, not merely in pursuance of a request from another state». IV Geneva Convention relative to the Protection of Civilian persons in Time of War, Commentary, International Committee of the Red Cross 593-94 (J.S. Picet ed., 1958).
*16 This paragraph states: «The High Contracting Parties and the Parties to the conflict shall repress grave breaches, and take measures necessary to suppress all other breaches, of the Conventions or of this Protocol which result from a failure to act under a duty to do so».
*18 Article I of the Convention declares in relevant part: «The Contracting Parties confirm that genocide . . . is a crime under international law which they undertake to prevent and to punish». Article V states: «The Contracting Parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention, and in particular, to provide effective penalties for persons guilty of genocide or of any of the other acts enumerated in article III». Article VI states: «Persons charged with genocide or any of the other acts enumerated in article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction».
*19 Article 22 of this draft Code states that «systematic or mass violations of human rights» are Crimes against the Peace and Security of Mankind. The article states in relevant part: «An individual who commits or orders the commission of any of the following violations of human rights . . . torture, establishing or maintaining over persons a status of slavery, servitude or forced labour . . . . in a systematic manner or on a mass scale . . . .» Article 5, headed «responsibility of states», states: «prosecution of an individual for a Crime against the Peace and Security of Mankind does not relieve a state of any responsibility under international law for an act or omission attributable to it». Paragraph 1 of article 6 states: «A state in whose territory an individual alleged to have committed a Crime against the Peace and Security of Mankind is present shall either try or extradite him».
*20 Older documents refer to «family honour», «honour of women», etc. Seen in the context of that time, rape and other sexual assaults would surely violate such «honour».
*21 There is no doubt that rape and other sexual assaults inflict severe pain and suffering on the victim, which can be inflicted for several reasons. For example, in the majority of the cases reported, the alleged perpetrators were of a different ethnic origin from the victims, which points to discrimination.
*22 Amnesty International, Bosnia and Herzegovina, Rape and Sexual Abuses by Armed Forces (January 1993).
*23 As cited in Theodor Meron, «Rape as a Crime under International Humanitarian Law», 3 American Journal of International Law 424, 426 (1993).
*24 For a definition, see articles 4 and 13 of the Fourth Geneva Convention. If the victims of rape and other sexual assaults are considered to have prisoner of war status, reference can be made to the Geneva Convention relative to the Treatment of Prisoners of War, articles 13, 16, 45, 87, paragraph 3, 130 and common article 3, paragraph 1 and the relative articles of additional Protocol II.
*25 See the discussion on interpretation under Section I, paragraph 2.
*26 For the interpretation of «inhuman treatment» the commentary to article 147 refers to article 27, which, inter alia, expressly prohibits rape and other sexual assaults. It also states: «That leads to the conclusion that by `inhuman treatment' the Convention does not mean only physical injury or injury to health». IV Geneva Convention relative to the Protection of Civilian persons in Time of War, Commentary, International Committee of the Red Cross, 598 (J.S. Pictet ed., 1958).
*27 IV Geneva Convention relative to the Protection of Civilian persons in Time of War, Commentary, International Committee of the Red Cross, 593-94 (J.S. Pictet ed., 1958).
*28 In the Trial of Admiral Toyoda, specification 1 of the charge states as follows: «wilfully and unlawfully disregarding and failing to discharge his duties by ordering, directing, inciting, causing, permitting, ratifying and failing to prevent Japanese naval personnel of units and organizations under his command, control and supervision from abusing, mistreating, torturing, raping, killing and committing other atrocities.» W.H. Parks, «Command Responsibility for War Crimes», 1 Military Law Review 69, 69-70 (1993).
*29 Rhonda Copelon, «Surfacing Gender: Reconceptualizing Crimes against Women in Time of War», in Alexandra Stiglmayer, Mass Rape 4 (1994) (forthcoming).
*30 It can be argued that perpetrators are supposed to be «acting as organs of state». See E.A. Daes, New Types of War Crimes and Crimes against Humanity: Violations of International Humanitarian Law and Human Rights Law 55-78. However, «the Nuremburg jurisprudence makes clear» that the perpetrator «need not necessarily be a soldier». Theodor Meron, «Rape as a Crime under International Humanitarian Law», 3 American Journal of International Law 424, 426 (1993).
*31 The fact that SFRY ratified these Protocols is also important. N. Keijzer, «Internationale berechting van oorlogsmisdrijven, begaan in het voormalige Joegoslavi‘,» 10 Militair Rechterlijk Tijdschrift 66, 66-68 (1993). Protection from rape and other sexual assaults as a topic under customary international law applicable in armed conflict can be deduced from the history of international law, e.g.: Lieber Code («rape»), Oxford Manuel («female honour»), The Declaration of Brussels («honour and rights of the family»), and the above-mentioned 1907 Hague Convention.
*32 The Declaration of St. Petersburg of 1868 already states «that the only legitimate object which states should endeavour to accomplish during war is to weaken the military forces of the enemy. This rule . . . constitutes one of the foundations of international humanitarian law applicable in armed conflict». International Committee of the Red Cross, Draft Additional Protocols to the Geneva Conventions of 12 August 1949, Commentary 53 (1973). Since then, these principles have been reaffirmed in many legal instruments, e.g.: Resolution XXVIII, adopted at the XXnd International Conference of the Red Cross held in 1965 in Vienna, the GA Resolution 2444 (XXIII). Frits Kalshoven, Constraints on the Waging of War 22 (International Committee of the Red Cross, 2nd ed. 1991) and Additional Protocol I to the Four Geneva Conventions (article 48 and article 85, paragraph 3, sub A, declaring violation a «grave breach»).
*34 Rules for non-international armed conflicts are «not applicable to situations of internal disturbances and tensions, such as riots, isolate and sporadic acts of violence and other acts of similar nature, as not being armed conflict». Additional Protocol I, article 1, paragraph 2.
*35 Apart from the fact that this article constitutes customary international law, an extra argument for application can be found in the fact that Representatives of the Republic of Croatia, the SFRY and the Republic of Serbia entered into a Memorandum of Understanding on 27 November 1991, pursuant to common article 3 of the Geneva Conventions. Two agreements have also been concluded between representatives of the Republic of Bosnia- Herzegovina and representatives of the Serbian Democratic Party, The Party of Democratic Action, and the Croatian Democratic Community pursuant to common article 3 of the Geneva Conventions.
*36 Judgment of 27 June 1986, International Court of Justice Reports 1986, at 14. (as cited in: Report of the Secretary-General pursuant to paragraph 2 of Security Council resolution 808 (1993), U.N. Doc. S/25704, at 35 (3 May 1993).
*37 See Section I.C.
*38 C. Pilloud et al., Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 892 (Y. Sandoz et al. eds., 1987). As article 75 offers a general protection for persons not protected by any other provisions of the Four Geneva Conventions or Additional Protocol I, it is sometimes stated that this also applies to article 76.
*39 25 International Legal Materials 1023 (1986).
*40 Theodor Meron, «The Case for War Crimes Trials in Yugoslavia», Foreign Affairs Summer 1993, at 122-35.
*41 IV Geneva Convention relative to the Protection of Civilian persons in Time of War, Commentary, International Committee of the Red Cross, 200 (J.S. Pictet ed., 1958).
*42 For the interpretation of these terms I refer to the discussion under Section I.C, above. Support for the argument that rape constitutes a «grave breach» under this protocol can also be found in a discussion among the drafters of the Protocol in 1976. Universal jurisdiction was «restricted to 'grave breaches' in order to enhance the probability of the observance of the law». In addition, it was felt that a precise standard was needed to avoid the risk that any soldier, without intending violation of the protocol, would run the risk of being charged with a war crime. Y. van Dongen, The Protection of the Civilian Population in Time of Armed Conflict 12 (1991). It might be concluded that the «spirit» of the crime is the criterion for determining whether a «grave breach» has occurred. For the argument that rape and other sexual assaults have all the characteristics of a «grave breach», see the discussion under Section I, Introduction, above. This protocol can be said to fall within the jurisdiction of the Tribunal, in so far as it constitutes customary international law; the «fundamental guarantees» stated in Chapter II, Article 4, ought to be regarded as such.
*43 Article 1, paragraph 1.
*44 Article 64 of the Fourth Geneva Convention provides that the laws of the occupied area shall remain in force and that the tribunals shall continue. A logical consequence seems to be that perpetrators of rape and other sexual assaults should be prosecuted, also in occupied territory. Articles 76, paragraph 4, and 126 contain specific rules on the treatment of female detainees in occupied territory.
*45 Violations of the «grave breaches» and violations of international customary law applicable in armed conflict both constitute war crimes.
*46 Reference can be made to the relevant part of the ruling of the International Military Tribunal in the Justice Case: «The Charter makes . . . a crime; and it is, therefore, not strictly necessary to consider whether and to what extent . . . was a crime before the execution of the London Agreement» (cited in Y. Khushalani, Dignity and Honour of Women as Basic and Fundamental Rights 25 (1982)).
*47 E. Schwelb, «Crimes against Humanity», 23 BYIL 178, 191 (1946). That «crimes against humanity» were interpreted broadly during the Nuremburg Trials can also be deduced from the opinion of F. de Menthon, the French prosecutor at Nuremburg who regarded «crimes against humanity» as «crimes against the human status», which he defined in relevant part as «all those faculties, the exercising and developing of which rightly constitute the meaning of human life» (cited in S. Goldenberg, «Crimes against Humanity, A Study in the Making and Unmaking of International Criminal Law», U.W.O. Law Review 1, 14).
*48 At the International Conference on Human Rights in 1968 apartheid was condemned as a «crime against humanity». S. Goldenberg, «Crimes against Humanity, A Study in the Making and Unmaking of International Criminal Law», U.W.O. Law Review 1, 47.
*49 D.J. Harris, Cases and Materials on International Law 122 (3rd ed. 1983). For the United Nations, the protection of human rights seems to be the main point of interest with respect to armed conflicts. Frits Kalshoven, Constraints on the Waging of War 20 (International Committee of the Red Cross, 2nd ed. 1991).
*50 See Section I.C, above.
*51 In the Draft Code of Crimes against the Peace and Security of Mankind slavery and servitude, when committed in a systematic manner or on a mass scale, are considered systematic or mass violations of human rights, constituting Crimes against the Peace and Security of Mankind, (article 22). In 1949, the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others replaced for the contracting parties all foregoing conventions on Slavery. ECOSOC resolution 731 E, 1959, in: R.J. Taubenfeld & H.J. Taubenfeld, Sex-based Discrimination, Binder 2, at 16 (1979). In article 1 it is stated that the parties agree to punish: «any person who, to gratify the passions of another (1) procures, entices or leads away, for purposes of prostitution, another person, even with the consent of that person, (2) exploits the prostitution of another person, even with the consent of that person». It can be concluded that enforced prostitution constitutes enslavement, and that it is irrelevant whether the victim is male or female.
*52 Although article 5 of the Statute states that «crimes against humanity» must be committed in armed conflict, due to legal developments since the Charter of the IMT, it might be considered as «crimes against humanity» can also be committed in time of peace. M. Cherif Bassiouni, Crimes against Humanity in International Law 248 (1992). This has been formulated, e.g., in the Draft Code of Offenses against Peace and Security of Mankind (first version reported to the U.N. G.A. in 1954). Y. Khushalani, Dignity and Honour of Women as Basic and Fundamental Rights 32 (1982). C.F. Ruter, Enkele Aspecten van de Strafrechtelijke Reactie op Oorlogsmisdrijven en Misdrijven Tegen de Menselijkheid (1973).
*53 S. Goldenberg, «Crimes against Humanity, A Study in the Making and Unmaking of International Criminal Law», U.W.O. Law Review 1, 19.
*54 E. Schwelb, «Crimes against Humanity», 23 BYIL 178, 191 (1946).
*55 S. Goldenberg, «Crimes against Humanity, A Study in the Making and Unmaking of International Criminal Law», U.W.O. Law Review 1, 48.
*56 Rhonda Copelon, «Surfacing Gender: Reconceptualizing Crimes against Women in Time of War», in Alexandra Stiglmayer, Mass Rape 7 (1994) (forthcoming).
*57 Here there is no need to prove intent, as is the case with the crime of genocide. See Section V. As a consequence, it will be easier to meet this requirement.
*58 For the constitution of a «crime against humanity», it is necessary for the government, which is responsible for prevention and repression, to have instigated or, at least, tolerated the crimes. C.F. Ruter, Enkele Aspecten van de Strafrechtelijke Reactie op Oorlogsmisdrijven en Misdrijven tegen de Menselijkheid 37-38 (1973).
*59 See Section I.C.
*60 Not only does rape have a serious effect on the victim, bodily as well as mentally, it also has a serious effect on her family environment. Families are reported to have fled their communities for fear of rape. Probably rape and other sexual assaults have even more severe effects in Muslim communities as victims are allegedly regarded as dishonoured.
*61 This can be effected in several ways, e.g.: it is reported that women are raped in captivity by men of another ethnic group and only released when pregnancy was well advanced; at this point, it is not possible to bear children of the same ethnic origin as the women. The alleged mutilation of men's genitals prevents these men from procreating. In the above-mentioned examples, ethnic procreation will be achieved by the alleged perpetrators.
*62 Article I of the Convention states in relevant part: «The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law . . . .»
*63 Theodore Meron, «The Case for War Crimes Trials in Yugoslavia», Foreign Affairs Summer 1993, at 130-131. Article IV of the Convention states: «Persons committing genocide or any of the other acts enumerated in article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals».
*64 Jurisprudence and literature have not yet defined the proof (in substance and amount) necessary to satisfy this requirement.
*65 A possibility of application with respect to article 76 of Protocol I might be that it is sometimes stated that this article applies when the victims are not protected by other articles of the Four Geneva Conventions or Additional Protocol I.
*66 «Widespread» refers to a large scale or a pattern of abuse.
*67 «Systematic» refers to rape being used as one of the tools of war in a pattern of abuses.
*68 Several of the acts, each constituting the crime of genocide, might be applicable here. See article 2 of the Genocide Convention.
*69 Article 1, paragraph 1.
*70 A discussion on the possibilities of application and the conditions/limitations can be found above.