The practice of international criminal tribunals has set the standard for prosecuting rape and sexual violence in war. The International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) have recognised that such acts, when committed in the context of a systematic and widespread attack against the civilian population, may qualify as crimes against humanity.
A crime against humanity is a criminal offence that includes serious acts such as murder, persecution, torture, rape, etc, committed as part of a systematic and widespread attack on the civilian population. Unlike war crimes, crimes against humanity can also be committed in peacetime. To date, no person has been charged with this crime before Serbian courts.
The reason for this omission lies in the opinion of the Public Prosecutor’s Office for War Crimes (OWCP) that a crime against humanity cannot be prosecuted, because this act was not part of the domestic criminal legislation until 2005. However, the position of the Humanitarian Law Center (HLC) is that the existing legal framework in Serbia allows for the prosecution of the criminal offence of crime against humanity without violating the principle of legality, i.e. through direct application of international law. The correctness of this position was confirmed by the judgment of the European Court of Human Rights (ECtHR) in the Šimšić Case.
By directly applying international law to cases related to events from the 1990s, domestic prosecutors and courts would align their practices with the standards of contemporary international law in prosecuting rape and other forms of sexual violence. At the same time, classifying sexual violence as a crime against humanity, when committed as part of a widespread attack, would contribute to a better understanding of the broader context in which these crimes were perpetrated.
The policy paper is available on this link.
