Rape as a Crime Against Humanity and as a War Crime in the Context of the International Criminal Tribunal for the Former Yugoslavia

Abstract

The main goal of this article is to analyse the crime of rape in the context of law and jurisprudence of the International Criminal Tribunal for the Former Yugoslavia (ICTY), as well as the legal impact that the operation of this tribunal has had on the law and practice of the International Criminal Court (ICC) in this matter. Therefore, the first part of this paper is dedicated to the research of the definitions of the crime of rape given in the practice of the ICTY, namely the ones that stemmed from the Furundžija and Kunarac et al. cases before that tribunal. The author argues that such a situation, in which one criminal tribunal does not have the definition of a crime for which it has jurisdiction in advance but rather has to create it in its practice, is a serious violation of some of the most important principles of criminal law, most importantly the principle of legality. The second part of the article focuses on the definition of rape adopted in the law of the ICC, i.e. by its Elements of Crimes act and the influence that the definitions of rape created by the ICTY have had on it. The author opines that, although the creators of the ICC’s definition of the crime of rape surely had in their minds the definitions created by the ICTY, the definition contained in the Elements of Crimes is nevertheless different from those previous definitions. Having that in mind, the author argues that the ICC should rarely refer to the ICTY practice regarding the crime of rape in its future jurisprudence, and that it could do so only when such practice is completely in line with the definition of rape contained in the Elements of Crimes.