Ensuring the Effective Prosecution of Sexually Violent Crimes in the Bosnian War Crimes Chamber: Applying Lessons from the ICTY

Authored by: Courtney Ginn

Categories: Human Rights
Sub-Categories: International Law, Sexual and Gender-Based Violence (SGBV)
Country: Bosnia and Herzegovina
Region: Europe and Eurasia
Year: 2013
Citation: Ginn, Courtney. "Ensuring the Effective Prosecution of Sexually Violent Crimes in the Bosnian War Crimes Chamber: Applying Lessons from the ICTY." Emory International Law Review 27, no. 1 (2013):567-601.

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Executive Summary

Despite the extensive use of sexual violence as a weapon in war throughout history, the International Criminal Tribunal for the former Yugoslavia was the first international tribunal to develop criminal jurisprudence concerning sexual violence. Although the ICTY expanded criminal liability for sexually violent acts committed during the Yugoslav Wars to an unprecedented extent, the conviction rate for sexually violent crimes was much lower than the conviction rate for other crime. This Comment will explore the dissonance between the expansion of criminal liability for sexually violent crimes and the low conviction rate for these crimes. Cases, eyewitness reports, and interviews with ICTY prosecutors provide insight on the possible causes of this dissonance. This comment argues that the low conviction rate in the ICTY for sexually violent crimes is the result of several factors: (1) a lack of expertise in the Office of the Prosecutor, (2) gender bias (3) the reluctance of victims to testify, and (4) the lack of coordination between the Office of the Prosecutor and the Victim and Witnesses Unit. Understanding the reasons behind the ICTY’s low conviction rate is especially important as the ICTY shifts its caseload to the national court system. Just because the Bosnian War Crimes Chamber is inheriting the ICTY’s cases does not mean the War Crimes Chamber must inherit the ICTY’s difficulties in prosecuting sexually violent crimes. Although the War Crimes Chamber will face many of the same difficulties—gender bias, lack of expertise, victim reluctance—the ICTY’s successes and failures in prosecuting sexually violent crimes can provide guidance. By applying the lessons learned in the ICTY, the War Crimes Chambers will be able to successfully prosecute sexually violent crimes.