Sexual Violence in Armed Conflict and the Jurisprudential Legacy of the ICTY

Sexual violence has long been part of armed conflict, but for much of the twentieth century, it was not a focus in international law. Although rape and similar crimes were often reported, early legal frameworks did not treat them as crimes that could be prosecuted. The 1907 Hague Regulations called for respect for “family honour and rights” (Article 46), and Article 27 of the Fourth Geneva Convention later called for special protection of women against attacks on their honour, including rape. By describing sexual violence mainly as a violation of honour instead of a violation of bodily autonomy, these laws made the harm seem moral and gendered, and did not provide a clear way to prosecute these crimes or recognize them as serious breaches of the Geneva Conventions. Only with the creation of international criminal tribunals, especially the ICTY, did sexual violence become recognized and prosecuted as a separate crime under international law. However, even after the ICTY was established, victims in the former Yugoslavia did not always receivereparations, and legal definitions and prosecutions still vary between countries, even thirty years after the trials.

The Jurisprudence of the ICTY

“I think that I'm once again at a point where I find it difficult to explain. I think that I have still have and there will always be traces of everything that happened to me. I think that for the whole of my life, all my life I will have thoughts of that and feel the pain that I felt then and still feel. That will never go away.”

Kunarac et al Witness 87 Testimony

Since the Tribunal started its work, 78 individuals, or 48% of the 161 accused, had charges of sexual violence included in their indictments. Estimated number of victims is set to be between 20 000 and 50 000, in Bosnia and Herzegovina only.

Importantly, the ICTY’s contribution was not limited to the recognition of sexual violence against women. Already in its first trial, Prosecutor v. Duško Tadić, the Tribunal also addressed sexual violence against male detainees, which was a major change from earlier legal systems that saw sexual violence as a crime only against women This jurisprudence was further developed in Prosecutor v. Mucić et al. (Čelebići), where acts of sexual violence against men were legally qualified as a form of torture.

These cases showed that the ICTY could redefine sexual violence as a crime based on the violation of bodily autonomy,not just the protection of “honour.” They also revealed ongoing taboos about male victims, whose experiences were often grouped under broader terms like inhumane acts.

The case against Dragoljub Kunarac, Radomir Kovač, and Zoran Vuković was the first at the ICTY where the accused were convicted of rape not only as a violation of the laws or customs of war under Article 3 of the Statute, but also as a crime against humanity under Article 5 (g). Earlier convictions at the ICTY had only been for rape as a violation of thelaws or customs of war. This judgment raised rape to the level of a crime against humanity and was the first time an international tribunal convicted defendants solely for sexual violence or prosecuted sexual slavery. The case also clarified the definitions of both enslavement and rape. For enslavement, it separated the idea of chattel slavery, meaning legal ownership of a person, from enslavement in a specific case. It alsoestablished that consent or lack of consent is not an element of the crime, and the length of time is not relevant. When defining rape, the ICTY moved away from focusing on force or resistance and instead looked at the absence of real consent in the coercive context of war. The Hague Justice Portal analysed the trajectory of concluding the definition. The specific elements of the crime of rape, namely the actus reus and the mens rea, are not set out in the Statute nor in international humanitarian law or human rights instruments. The Trial Chamber therefore adopted as a starting point of its analysis the definition of rape given by the Trial Chamber in the Furundžija case. This definition of rape given by the Trial Chamber was challenged on appeal. Specifically, the Appellants argued that the use of force or threat of force and the victim’s “continuous” or “genuine” resistance must be proven. In other words, according to this interpretation, the victim must show resistance throughout all the sexual intercourse so as to give notice to the perpetrator that his conduct is not welcome. The Appeals Chamber rejected the need for continuous resistance, saying this was not legally or factuallycorrect in armed

conflict. While force or threats can be strong evidence of non-consent, they are not required for the crime. The coercive nature of wartime detention, fear, and domination makes real consent impossible. This legal approach marked a clear break from earlier moral and gendered views of sexual violence and established rape as a violation of sexual self-determination and bodily autonomy under international criminal law.

Domestic proceedings of Sexual violence in Armed Conflict

In Serbia, the competent prosecution authority is the Office of the War Crimes Prosecutor, and the Specialized Department of the District Court in Belgrade is the competent court. In Bosnia and Herzegovina, the competent authority is the War Crimes Department of the Court of Bosnia and Herzegovina. Although the ICTY precisely defined the crime of sexual violence as a crime against humanity, domestic court practices differ. In Serbia, no one has been prosecuted for crimes against humanity so far because the Office of the War Crimes Prosecutor has taken the position that this criminal offense cannot be prosecuted. This practice is not a result of a lack of evidence or legal norms, but rather a consequence of the restrictive stance of the War Crimes Prosecutor's Office, which believes that prosecuting crimes against humanity for acts committed during the wars of the 1990s would violate the principle of legality (nullum crimen sine lege).

This interpretation of legality has serious consequences. By insisting on a strictly formal approach, domestic authorities prevent sexual violence from being considered in its real context, as part of a wider or systematic attack against the civilian population. This stops the legal classification that would best reflect the nature and seriousness of the crime, even though this context was the basis for the ICTY's key decisions.

Humanitarian Law Center’s report “Sexual Violence in War: An Analysis of Cases Before Courts in Serbia (2003–2024)”further confirm that such a position is difficult to justify legally. Crimes against humanity already existed as criminal offenses in international customary law during the relevant period, and Serbia, as the legal successor of the SFRY, is bound by international treaties that confirm their punishability regardless of the time of commission.

The consequences of this normative stance are especially visible in the way sexual violence is qualified before domestic courts. In practice, rape and other forms of sexual violence are almost exclusively prosecuted as war crimes against the civilian population or under general categories such as inhumane treatment or torture. In this way, sexual violence is reduced to individual, isolated cases and taken out the context of intentional, systematically executed crime.

The comparative practice of Bosnia and Herzegovina further challenges the arguments on which Serbia relies. The Court of Bosnia and Herzegovina has prosecuted sexual violence as a crime against humanity in a series of cases, relying on criteria developed in ICTY practice, particularly the existence of a widespread or systematic attack on the civilian population and the perpetrator's awareness of that attack. The example of such practice is the case Vidoje Blagojević et al, in which the court of Bosnia and Herzegovina tried the accused for crimes against humanity committed against the Muslim civilian population in Zvornik. However, even though, this practice shows that the obstacles cited by Serbia are not necessarily legal in nature, there are also uneven practices and laws in Bosnia and Herzegovina, depending on entities. Also, there is no uniform federal law that regulates the question.

Differences between Serbia and Bosnia and Herzegovina are particularly evident in the treatment of victims of sexual violence. While in Bosnia and Herzegovina, victims of wartime sexual violence have recognized status as civilianvictims of war, and since 2023 this status is guaranteed not only to the victims, but also to children that were born as a result of rape in war. In Serbia there is no such status for the victims. This further distances the domestic legal system from the victim-sensitive approach developed in international law, and victims are often referred to lengthy civil proceedings, prolonging their legal and psychological insecurity.

Additionally, domestic court practice often requires a higher standard of proof than that established in ICTY practice, insisting on additional corroboration of the testimonies of victims of sexual violence. Such an approach ignores the specific nature of these crimes and contributes to secondary victimization, while at the same time, mitigating circumstances for the accused are often given more weight than the lasting consequences suffered by the victims.

It becomes clear that the limited prosecution of sexual violence as a crime against humanity in Serbia cannot be explained by a lack of legal norms or international standards. On the contrary, the ICTY has developed a consistent and normatively clear framework, and the comparative practice of Bosnia and Herzegovina shows that its application indomestic proceedings is possible without violating the basic principles of criminal law. The refusal to view and prosecute sexual violence within that framework is an institutional choice, the consequences of which are most acutely felt by the victims, leaving them without full legal recognition and the symbolic justice that international law formally guarantees.