Prosecutor
v. Furundzija
This
trial determined the elements of rape under international law. The
case centered on a local commander of a special unit of the Bosnian
Croat military police who was charged under Article 3
of
the Statute with torture and "outrages upon personal dignity"
for allegedly verbally interrogating a woman while a colleague repeatedly
raped her. After an exhaustive survey of domestic laws and customary
laws and norms, the Trial Chamber issued its Judgment ( December 10,
1998), pronouncing the elements of rape in international law to be:
- the
sexual penetration, however slight:
a.
of the vagina or anus of the victim by the penis of the perpetrator
or any other object used by the perpetrator; or
b.
of the mouth of the victim by the penis of the perpetrator;
- by
coercion or force or threat of force against the victim or a third
person.
The
elements thus encompass vaginal rape, sodomy, and fellatio, and
include rape of males. It is also significant that Furundzija had
not physically raped the victim himself. Holding that the woman
was tortured by means of rape, Furundzija was found guilty as a
co-perpetrator of torture and an aider and abettor of rape because
his presence, words, and omissions were found to have facilitated
the sexual violence. The verdict was upheld on appeal (July 21,
2000).
Prosecutor
v. Kunarac and others
This
was the first international trial hearing evidence of enslavement
as a crime against humanity. Three Bosnian Serb paramilitary commanders
or sub-commanders were charged with various forms of sexual violence
committed against Bosnian Muslim women and girls in the town of
Foca during the conflict. Two were charged and convicted of rape
and enslavement as crimes against humanity for conduct essentially
amounting to sexual slavery. In its Judgment (Feb. 22, 2001), the
Trial Chamber held that "the actus reus of [enslavement]
is the exercise of any or all of the powers attaching to the right
of ownership over a person. The mens rea of the violation
consists in the intentional exercise of such powers." The Trial
Chamber then gave examples of a number of factors–such as the
duration of the captivity and the amount of control-that could be
considered in determining whether enslavement was committed.
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